New Jersey Bell Telephone Co.

National Labor Relations Board - Board Decisions

Aug 18, 1992

308 N.L.R.B. 277 (N.L.R.B. 1992)

277
308 NLRB No. 32
NEW JERSEY BELL TELEPHONE CO.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The fourth sentence in sec. II,C, par. 18 of the judge’s decision
should read ‘‘Ehlers then asked for union representation and re-
quested that Huber serve as his representative.
2 The Charging Party has moved to expand the record to include
the arbitration award and opinion of Arbitrator Lawrence T. Holden
Jr. and to modify the Order of the administrative law judge. We
deny the motion because it does not meet the requirements of Sec.
102.48(d)(1) of the Board’s Rules and Regulations. Under that sec-
tion, the Board may grant a motion to reopen the record if the evi-
dence adduced ‘‘would require a different result’’ in the proceedings.
As fully set forth below, we are adopting the judge’s finding that
the Respondent unlawfully terminated William Huber, and the evi-
dence sought to be entered by the Charging Party would not require
a different result. Accordingly, the motion is denied.
We also deny the Respondent’s February 13, 1990 motion to defer
to the arbitration award. The Board will not defer to an arbitration
award unless the party urging deferral has raised the issue in a time-
ly manner. Combustion Engineering, 272 NLRB 215 (1984). Here,
arbitration was requested on October 14, 1987. The hearing before
the administrative law judge was closed on March 18, 1988. The ar-
bitration hearing was held on November 8, 1988. The parties agreed
to delay the issuance of the arbitral award until after the judge’s de-
cision in the instant case. The judge’s decision issued on March 27,
1989, and the arbitral award issued on December 27, 1989. The Re-
spondent did not raise the issue of deferral before the judge or in
its exceptions of May 12, 1989. Concededly, the arbitral award was
not issued until after these events. However, the Respondent could
have raised, at these times, deferral under Collyer Insulated Wire,
192 NLRB 837 (1971), or at least the prospect of potential deferral
under Spielberg Mfg. Co., 112 NLRB 1080 (1955), and Olin Corp.,
268 NLRB 573 (1984). Respondent did not do so. It did not move
for deferral until February 13, 1990. In these circumstances, we find
the Respondent’s motion to be untimely and deferral to be inappro-
priate. Accordingly, we deny the motion.
3 All dates hereafter refer to 1987.
4 The record indicates that Huber had spent 1 day over the past
several years performing ‘‘production’’ work for the Respondent.
5 The Respondent has excepted to the judge’s finding that the pay
Huber receives for joint time is contractually required. The Respond-
ent has failed to present any evidence in support of its exception,
however.
New Jersey Bell Telephone Company and Local
827, International Brotherhood of Electrical
Workers, AFL–CIO. Cases 22–CA–15099 and
22–CA–15119
August 18, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On March 27, 1989, Administrative Law Judge Ste-
ven B. Fish issued the attached decision. The Respond-
ent filed exceptions and a supporting brief. The Gen-
eral Counsel and the Charging Party filed cross-excep-
tions and supporting briefs. The Respondent filed an-
swering briefs in opposition to the cross-exceptions.
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, cross-exceptions, and
briefs and has decided to affirm the judge’s rulings,1
findings, and conclusions only to the extent consistent
with this Decision and Order.2
I. FACTUAL BACKGROUND
A. The Ehlers Interview
The facts are fully set forth in the judge’s decision
and are summarized as follows. In June 1987,3 a dis-
pute arose at the Respondent’s Bergenfield, New Jer-
sey facility regarding whether a particular job assign-
ment could be performed safely. Immediately follow-
ing this dispute, an incident occurred at the facility in
which a ladder, apparently rigged to do so, fell on one
of the Respondent’s supervisors. In addition, that su-
pervisor’s office was ransacked. The Respondent’s se-
curity department thereafter commenced an investiga-
tion into the matter. The investigation included inter-
views of many employees of the Bergenfield facility.
The initial interviews conducted by Respondent’s se-
curity department were of Bergenfield employees Mike
Woods and Daniel Ehlers on June 22. Prior statements
taken from management personnel placed Woods and
Ehlers, along with other employees, near the super-
visor’s office shortly before it was ransacked. The
statements additionally alleged that Woods remarked to
management personnel after the incident, ‘‘you’re
playing with a man’s safety.’’
At the commencement of the interview of Woods on
June 22, the Respondent complied with Woods’ re-
quest that William Huber serve as his union represent-
ative during the interview. Woods and Huber were per-
mitted to confer privately before the start of the inter-
view. Huber is the Union’s general delegate whose ju-
risdiction includes the Bergenfield location. Although
Huber spends all of his time functioning in his capac-
ity as general delegate, he retains his employee status
and company identification card.4 Pursuant to the par-
ties’ collective-bargaining agreement, Huber spends
over half of his time on so-called joint time, such as
grievance meetings, for which he is paid by the Re-
spondent.5
The security representatives asked Woods a series of
questions, to which he frequently responded ‘‘I don’t
know,’’ ‘‘I don’t recall,’’ or ‘‘I don’t remember.’’ The
questions were then repeated two or three times. Al-
though Woods answered the questions twice, on the
third query Woods stated that he had already re-
sponded and would not answer the same questions
again. When the security representatives persisted,
Huber also objected to the repetitious questioning, and
278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The Union had recently distributed guidelines to its officials rec-
ommending that they advise interviewees, inter alia, not to answer
the same question twice.
7 NLRB v. J. Weingarten, 420 U.S. 251 (1975).
8 The Union is required to pay the wages of union representatives
in attendance at investigatory interviews. Huber was at this time al-
ready being paid by the Union. He indicated his concern that the
Union need not incur the additional expense of paying for David’s
time at the investigatory interview.
requested that new questions follow.6 The interview
continued with the questions being asked repeatedly
and Woods and Huber vehemently objecting to such
questions. The interview lasted approximately 1 hour,
including a restroom break for Huber and Woods.
Thereafter, also on June 22, the security representa-
tives brought in Daniel Ehlers for an investigatory
interview. Ehlers requested that Huber serve as his
union representative, and the security officials agreed.
Ehlers and Huber were permitted to confer privately
prior to the interview.
Ehlers was then asked a series of questions regard-
ing the Bergenfield incident. Each question was asked
only once. In answering the questions posed to him,
many of Ehlers’ responses were vague and inconclu-
sive. The security representatives warned Ehlers that
they had information that Ehlers had direct knowledge
of the events, and that it was his duty to cooperate. On
repetition for a second time of some of the prior ques-
tions, Huber objected that the questions had already
been asked. The security representatives attempted to
repeat their questions, but Huber and Ehlers continued
to interrupt the questions on the basis that they had
been previously asked. Ehlers was warned that if
Huber continued to interrupt, Ehlers would be subject
to discipline. Huber was also informed that he could
be disciplined if his behavior continued. After an addi-
tional interruption by Huber, he was informed by the
security representatives that he was disruptive, that he
should leave, and that the interview would continue in
the presence of another union official. Huber refused
to leave. The Respondent summoned the police, caused
Huber to be arrested, and filed criminal trespass
charges against him. The interview thereafter continued
without incident with another union official serving as
Ehlers’ representative.
B. The Bergenfield Arrest on June 23
The following day, June 23, Huber arranged a meet-
ing outside the Bergenfield facility before the start of
the workday to discuss with employees the procedures
to follow in the event additional interviews were
scheduled. Shortly after Huber had finished addressing
the employees and the workday had commenced,
Huber was informed that an employee had become
upset on learning of his scheduled interview. Without
seeking permission from the Respondent, Huber en-
tered the Bergenfield facility to speak with that em-
ployee. While doing so, several employees engaged
Huber with further questions regarding the interview
process.
Supervisory personnel observed Huber’s presence
and asked him what he was doing. Huber replied that
he was advising employees regarding their
Weingarten7 rights. The supervisors then inquired
whether he had permission to be in the facility. On
Huber’s negative response, he was directed to leave
the facility. Huber refused to do so. The Respondent
thereafter summoned the police. When the police ar-
rived, Huber was already outside the Bergenfield facil-
ity. Huber approached the police, displayed his com-
pany and union identification, stated that this was a
labor problem not involving the police, and added that
he had already left the building. The police responded
that the Respondent intended to file charges against
him. Huber was arrested, and the Respondent filed
criminal trespass charges against him.
C. The Neithardt Interview
On Huber’s release from the police station, he pro-
ceeded to the Respondent’s River Edge, New Jersey
facility where an interview of Bergenfield employee
Timothy Neithardt was to take place. Huber arrived at
the entrance to the River Edge facility at the same time
as the acting shop steward at Respondent’s Emerson,
New Jersey location, Bob David. David had been des-
ignated by the Respondent to serve as Weingarten rep-
resentative for interviews to be conducted at River
Edge. Huber informed the Respondent that due to his
having greater experience than David as well as for
reasons of economy,8 he would replace David as the
union representative for employee Neithardt. The Re-
spondent insisted, however, that David serve as union
representative and requested that Huber leave the
premises. Huber refused to depart. The Respondent
again summoned the police, Huber was again arrested,
and the Respondent filed criminal trespass charges
against him.
Approximately 1 week later, the Respondent dis-
charged Huber. The discharge was based on Huber’s
insubordination for refusing to leave the Respondent’s
premises when directed to do so by management, and
for his failure to observe the Respondent’s rule requir-
ing that a union representative obtain permission from
management before conducting union business on the
Respondent’s premises during company time.
II. DISCUSSION
A. Huber’s Ejection from the Ehlers Interview
This case presents an issue of first impression before
the Board: whether a Weingarten representative may
permissibly direct that questions by management may
279NEW JERSEY BELL TELEPHONE CO.
9 Postal Service, 288 NLRB 864, 867 (1988).
10 The judge also found, and we agree, that the Respondent vio-
lated Sec. 8(a)(1) of the Act by threatening Ehlers with disciplinary
action based on Huber’s conduct. Concedely, as set forth below,
Huber engaged in unprotected conduct. However, in our view, this
did not privilege a threat to Ehlers. To countenance such a threat
would mean that employees would be subject to retaliatory action
based on the conduct of their Weingarten representative. In our
view, this would needlessly deter employees from exercising their
Sec. 7 right to choose such a representative. We do not adopt, how-
ever, the judge’s discussion regarding the unlawful nature of the Re-
spondent’s threat to discipline Huber for his conduct as Weingarten
representative, absent any such allegation in the complaint.
Member Devaney agrees that the Respondent violated Sec. 8(a)(1)
by threatening Ehlers based on the conduct of Huber. As indicated
in his separate opinion, Member Devaney does not agree that Huber
engaged in unprotected conduct.
only be asked once (in the case of Ehlers), and prevent
management from repeating its questions.
The judge initially observed, and we agree, that the
‘‘[p]ermissible extent of participation of [Weingarten]
representatives in interviews is seen to lie somewhere
between mandatory silence and adversarial confronta-
tion.’’9 The judge further observed that a Weingarten
representative may advise against answering questions
that are reasonably perceived by the representative as
abusive, misleading, badgering, confusing, or
harassing. The judge found that Huber reasonably be-
lieved that the repetitious questioning of Ehlers con-
stituted harassment or intimidation. The judge accord-
ingly found that Huber’s conduct in advising Ehlers to
answer questions only once, and the Union’s policy to
that effect, was a reasonable exercise of the Union’s
representative function, and did not unduly interfere
with the Respondent’s right to conduct the interview
nor transform the interview into an adversarial con-
frontation. The judge thus concluded that the Respond-
ent violated Section 8(a)(1) of the Act by ejecting
Huber from Ehlers’ investigatory interview, directing
him to leave its premises, causing his arrest, and filing
trespass charges against him.10
The Respondent contends in its exceptions that it
lawfully removed Huber from the Ehlers interview be-
cause his conduct in advising Ehlers to answer ques-
tions only once exceeded the permissible role of a
union representative as set forth in Weingarten, and
interfered with the Respondent’s ability to effectively
conduct the investigatory interview. We find merit in
the Respondent’s exceptions.
The Board has long recognized the Supreme Court’s
intention in the Weingarten decision to strike a careful
balance between the right of an employer to investigate
the conduct of its employees at a personal interview,
and the role to be played by the union representative
present at such an interview. Southwestern Bell Tele-
phone Co., 251 NLRB 612, 613 (1980), enf. denied
667 F.2d 470 (5th Cir. 1980); Texaco, Inc., 251 NLRB
633, 636 (1980), enfd. 659 F.2d 124 (9th Cir. 1981).
It is clear from the Court’s decision in Weingarten that
the role of the union representative is to provide assist-
ance and counsel to the employee being interrogated.
Weingarten, supra, 420 U.S. at 262–263. The Court
specifically declared, however, that the presence of the
representative should not transform the interview into
an adversary contest or a collective-bargaining con-
frontation, and that the exercise of the Weingarten
right must not interfere with legitimate employer pre-
rogatives. Id. at 258–259, 263.
In light of these well-established principles, we can-
not find that Weingarten grants to a union representa-
tive the right to preclude an employer from repeating
a question to an employee at an investigatory inter-
view. The Supreme Court directly cautioned against
the transformation of an investigatory interview into an
adversarial contest by virtue of the presence of a union
representative. Incorporation of such a rigid limitation
on questioning would only serve to turn an investiga-
tory interview into a formalized adversarial forum.
This is clearly contrary to Weingarten.
Furthermore, it is within an employer’s legitimate
prerogative to investigate employee misconduct in its
facilities without interference from union officials.
Manville Forest Products, 269 NLRB 390 (1984);
Cook Paint & Varnish Co., 246 NLRB 646 (1979),
enf. denied 648 F.2d 712 (D.C. Cir. 1981). Indeed, an
employer may, without violating the Act, seek to com-
pel its employees to submit to questioning concerning
employee misconduct when the employer’s inquiry is
still in the investigatory stage and no final disciplinary
action has been taken. Manville Forest Products,
supra. The limitation on questioning that the Union
seeks to impose under the aegis of Weingarten would
severely circumscribe an employer’s legitimate prerog-
ative to investigate employee misconduct. Such a limi-
tation in effect vests in a union representative the au-
thority to terminate an investigatory interview follow-
ing a single series of questions by the employer. We
cannot reconcile such a restriction with the Court’s ex-
plicit intention to preserve legitimate employer prerog-
atives, and our duty to maintain the careful balance of
the rights of employer and employee articulated by the
Court.
Our conclusion does not detract from the right—ac-
knowledged by the judge—of a Weingarten representa-
tive to object to questions that may reasonably be con-
strued as harassing. See Postal Service, supra, 288
NLRB at 868. Contrary to the judge, however, we con-
clude that the conduct of the Respondent’s security
representatives in the Ehlers interview did not rise to
the level of harassment.
The Respondent in this case readily agreed to
Ehlers’ request for a union representative, and did not
dispute his selection of Huber. The Respondent further
permitted Ehlers and Huber to confer privately before
280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 In light of the nature of Ehlers’ responses, the Respondent’s
questioning Ehlers about relevant matters more than once was all the
more justified. According to the Respondent’s security officials,
Ehler answered virtually all questions the first time through with ‘‘I
don’t know’’ or ‘‘I don’t remember.’’ Indeed, it is questionable that
Ehlers, as our dissenting colleague suggests, really ‘‘responded to’’
the questions when first asked.
Given Ehlers’ unresponsive answers, we find it entirely under-
standable and resonable that the Respondent would want to probe
Ehlers’ memory and candor without constant interference from
Huber, the Weingarten representative. Contrary to the judge and our
dissenting colleague, the Respondent’s questioning, in these cir-
cumstances, cannot fairly be deemed to be harassment.
12 In concluding that Huber acted within permissible bounds, our
dissenting colleague relies in part on his finding that the Union had
determined, before the events at issue, that the Respondent had insti-
tuted a practice of harassing and intimidating employees in inves-
tigatory interviews. Though the Union may have determined, the
record does not support that the Respondent had in fact harassed or
intimidated employees or even that the Union’s determination was
reasonably based. Indeed, Huber’s testimony on the subject was
merely that the Union had issued guidelines regarding investigatory
interviews because of ‘‘an ongoing problem’’ with the Respondent’s
security department.
13 We agree with the judge’s recommended dismissal of the allega-
tion that the Respondent violated Sec. 8(a)(5) and (1) by unilaterally
promulgating the aforementioned rule on June 23.
14 Such a rule is valid only if it (1) limits access solely with re-
spect to the interior of the plant and other working areas; (2) is
clearly disseminated to all employees; and (3) applies to off-duty
employees seeking access to the plant for any purpose and not just
to those employees engaging in union activity. The judge found that
the Respondent’s rule violated the latter two requirements of the Tri-
County test.
the commencement of the interview. In addition, the
security officials specifically apprised Ehlers that they
had reason to believe he had knowledge of the Bergen-
field incident, and then attempted to repeat their ques-
tions to him when some of his initial responses were
vague and inconclusive.11 Under these circumstances,
we cannot conclude that the Respondent’s effort to
raise questions more than once constituted harassment
or intimidation.
Contrary to the views expressed by our dissenting
colleague, we do not diminish the role of a Weingarten
representative to that of a ‘‘passive observer.’’ The
representative is free to counsel the employee. As
noted above, however, the union cannot obstruct the
employer in exercising its legitimate prerogative of in-
vestigating employee misconduct. The repetition of a
question, or the phrasing of it in alternative ways, is
a common and legitimate investigatory technique,
which, in our view, cannot fairly or reasonably be de-
scribed as harassment. Consequently, the representative
cannot act to preclude the employer from using this
technique. If he does so, as Huber did in this case, he
loses whatever protection the Act affords a Weingarten
representative.
We find, therefore, that Huber, by advising Ehlers to
answer questions only once, and by preventing the Re-
spondent by his persistent objections and interruptions
from asking questions more than once at Ehlers’ inves-
tigatory interview, exceeded the permissible role of a
Weingarten representative.12 Having exceeded that
role, Huber forfeited his protected right to remain on
the Respondent’s premises as Ehlers’ representative.
Accordingly, the Respondent acted lawfully in ejecting
Huber from the interview, directing him to leave the
premises and, on Huber’s refusal to do so, causing his
arrest and filing trespass charges against him.
B. The Denial of Access at Bergenfield
on June 23
The Respondent ordered Huber to leave the Bergen-
field facility due to his failure to comply with its rule
that a union representative obtain permission from
management before conducting union business on the
Respondent’s premises during company time.13 The
judge found that this rule was unlawful under Tri-
County Medical Center, 222 NLRB 1089 (1976). Ac-
cordingly, the judge concluded that the Respondent
violated Section 8(a)(1) by, pursuant to its unlawful
rule, ordering Huber to leave the facility, causing his
arrest, and filing trespass charges against him. We
agree with the judge that the Respondent’s conduct
was violative of the Act, but only for the following
reasons.
In Tri-County, the Board articulated the analytical
framework for assessing the propriety of an employer’s
rule limiting the access of off-duty employees to its fa-
cilities.14 The Board’s expressed intent in doing so was
to prevent undue interference with the rights of em-
ployees under Section 7 of the Act to freely commu-
nicate their interest in union activity to those who
work on different shifts.
The judge based the application of Tri-County to
this case on his threshold determination that Huber is
an off-duty employee. In so concluding, the judge re-
lied on Huber’s retention of employee status and com-
pany identification card, as well as the Respondent’s
payment for his joint time. We find, contrary to the
judge, that Tri-County is inapposite because (1) the
Respondent’s rule is not directed towards its employ-
ees, whether on or off duty, and (2) Huber cannot be
considered an off-duty employee.
The Respondent’s rule is clearly directed exclusively
toward officials of the Union, rather than employees of
the Respondent. Initially, therefore, we find that Tri-
County does not apply to the rule in issue in this case.
Moreover, although Huber retains his status as an em-
ployee of the Respondent, we cannot conclude that the
analysis of Tri-County is applicable to the instant situa-
tion in which Huber was clearly performing his duties
as a full-time union general delegate. To characterize
Huber’s conduct at the Bergenfield facility on June 23
281NEW JERSEY BELL TELEPHONE CO.
15 In Lechmere, by contrast, the Court observed that the respondent
had established and consistently enforced a policy several years prior
to the union’s organizing efforts prohibiting solicitation or handbill
distribution of any kind on its property.
16 For example, Supervisor Hoffman testified that if a union offi-
cial were to speak to an employee who is on the job about a non-
union-related matter such as baseball or just to say hello, permission
would not be required.
17 As indicated in his separate opinion, Member Raudabaugh does
not agree that the Respondent violated the Act by summoning the
police and instituting criminal proceedings.
18 New Jersey statute 2C:18-3.(b) provides, in pertinent part:
b. Defiant trespasser. A person commits a petty disorderly per-
sons offense if, knowing that he is not licensed or privileged to
do so, he enters or remains in any place as to which notice of
trespass is given.
19 If the Respondent was concerned that Huber might later have
returned to the gargage, it could have filed a civil injunction action,
which would have accomplished its goal and have been less coercive
than seeking Huber’s arrest and conviction on criminal charges. To
go beyond what it needed to protect its property lends force to the
view that the Respondent’s filing of a criminal trespass complaint
was for a retaliatory purpose.
as that of an off-duty employee attempting to express
his interest in union activity to employees on different
shifts—as Tri-County was designed to protect—ignores
that Huber was clearly acting in his role as a full-time
union official and was perceived as such by the Ber-
genfield employees and supervisory personnel.
The term ‘‘off-duty’’ necessarily implies concomi-
tant on-duty status, which Huber clearly does not pos-
sess at any time. Huber has not performed regular pro-
duction work for the Respondent for several years and,
on the record before us, had no expectation of doing
so. To deem Huber an off-duty employee is irreconcil-
able with his de facto status as a full-time union offi-
cial with approximately 1000 employees under his ju-
risdiction. For these reasons, we conclude that the
judge’s Tri-County analysis is inapplicable to the in-
stant situation.
It has long been established, however, that a denial
of access for Section 7 activity may constitute unlaw-
ful disparate treatment when a property owner permits
similar activity in similar, relevant circumstances.
NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112
(1956); Providence Hospital, 285 NLRB 320, 322–323
(1987). Although the Supreme Court in Lechmere v.
NLRB, 112 S.Ct. 841 (1992), recently rejected the
Board’s holding in Jean Country, 291 NLRB 11
(1988), the Lechmere decision does not disturb the
Court’s statement in Babcock & Wilcox that an em-
ployer acts unlawfully when it discriminates by deny-
ing a union access while permitting access to other or-
ganizations. See also Sears, Roebuck & Co. v. San
Diego County District Council of Carpenters, 436 U.S.
180, 205 (1978). In this case, the Respondent’s rule on
its face discriminates against union activity because it
only requires permission by union officials for the con-
duct of union activity on company property.15 The
judge found that the rule as applied by the Respond-
ent’s supervisors did not require permission for the dis-
cussion of nonunion issues by union officials.16 In this
regard, we note, as did the judge, that on Huber’s en-
trance into the Bergenfield garage, the supervisors ini-
tially inquired as to his purpose rather than whether he
had obtained permission. Only after his response that
he was discussing union matters did the Respondent
question whether he had permission to do so, and
thereafter order him to leave the premises. Accord-
ingly, we find that the Respondent violated Section
8(a)(1) of the Act by denying Huber access to its Ber-
genfield facility pursuant to its unlawfully discrimina-
tory access rule.
C. The State Court Criminal Proceedings
Concerning Conduct at the Bergenfield Garage
The complaint further alleges that the Respondent
violated Section 8(a)(1) by summoning the police and
filing criminal trespass charges against Huber for his
conduct at the Bergenfield garage.17 In Johnson &
Hardin Co., 305 NLRB 690 (1991), as here, the em-
ployer filed criminal trespass charges before the Gen-
eral counsel had issued a complaint regarding the em-
ployer’s expulsion of the union representatives. We
held there that the filing of the criminal charges could
be enjoined as an unfair labor practice if it was shown
that the criminal charges were filed for a retaliatory
purpose and lacked a reasonable basis in fact or law.
We find these two requirements to be satisfied regard-
ing Huber’s arrest outside the Bergenfield garage on
June 23.
The judge found that Huber remained in the Bergen-
field garage for only 3 or 4 minutes after being ad-
vised by Respondent’s supervisor Hoffman to leave.
Indeed, Huber was already outside the garage when the
police arrived. Hoffman nevertheless advised the police
that the Respondent intended to file trespass charges18
against Huber. We find that the Respondent’s filing
criminal charges, given the short duration of the inci-
dent and Huber’s voluntary departure from the garage
before the police arrived, demonstrates that the Re-
spondent had a retaliatory purpose in causing Huber’s
arrest. Certainly, it was not necessary to arrest Huber
to remove him from the Bergenfield garage, as Huber
had already left the garage when the police arrived.
Nor was there any evidence that Huber intended to re-
turn to the garage unless he was restrained from doing
so.19
We additionally find that the Respondent’s filing of
‘‘defiant trespass’’ charges against Huber lacked a rea-
sonable basis. The New Jersey statute requires that for
there to be a trespass the defendant must ‘‘know’’ that
he is not privileged to be on the premises. The Re-
spondent was well aware that Huber believed that he
282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 251 NLRB 1083 (1981), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982).
had a right to be on the premises as a Weingarten rep-
resentative. Thus, Huber’s remarks to Supervisor Hoff-
man when Hoffman advised him to leave the garage
indicated that Huber believed he was privileged to
enter the premises to advise employees regarding their
Weingarten rights. The New Jersey statute also stipu-
lates that, as a prerequisite to a ‘‘defiant trespass,’’ a
person must ‘‘remain’’ on the premises after notice of
trespass is given. We do not believe that any reason-
able person would have considered Huber’s staying in
the garage just 3 or 4 minutes after being advised to
leave to be ‘‘remaining’’ on the premises such that a
criminal trespass action against Huber would be at all
justified. The Respondent has offered no precedent to
the contrary. We note furthermore that even if it could
be contended that staying 3 minutes constituted ‘‘re-
maining’’ on the premises, the Respondent was not
justified in considering Huber a trespasser in the first
place, since the only basis for excluding Huber was the
rule which required prior permission for the conduct of
union business, a rule that we have found to be unlaw-
ful under Section 8(a)(1).
Accordingly, under the principles set forth in John-
son & Hardin, supra, we conclude that the Respondent
violated Section 8(a)(1) of the Act by causing Huber’s
arrest outside the Bergenfield garage on June 23, and
filing criminal trespass charges against him.
D. The Neithardt Interview
The judge found that the Respondent violated Sec-
tion 8(a)(1) of the Act by refusing to permit Huber to
serve as the Weingarten representative for Timothy
Neithardt. The judge concluded, and we agree, that
when two union officials are equally available to serve
as a Weingarten representative, as with Huber and
David for employee Neithardt, the decision as to who
will serve is properly decided by the union officials,
unless the employer can establish special cir-
cumstances that would warrant precluding one of the
two officials from serving as representative. We find,
contrary to the judge, that the Respondent carried its
burden in this regard.
The Respondent argues that Huber’s prior refusals to
depart the Respondent’s premises, and its desire to
avoid a similar confrontation, justified its selection of
David to serve as Weingarten representative for em-
ployee Neithardt. The judge rejected this justification
based on his finding that the Respondent’s earlier di-
rectives to Huber to depart its premises were unlawful
and, accordingly, Huber’s failure to heed those direc-
tives could not justify his exclusion from the Neithardt
interview.
We have found above, however, contrary to the
judge, that Huber exceeded the permissible role of a
Weingarten representative during the Ehlers interview,
and that the Respondent acted lawfully in ejecting
Huber from that interview. We find that the Respond-
ent’s concern in preventing a repetition of such an in-
cident the following day at River Edge constituted a
legitimate basis for excluding Huber and selecting
David to serve as Neithardt’s representative. In so con-
cluding, we are particularly persuaded by the closeness
in time of the incidents.
We find, therefore, that the Respondent lawfully se-
lected David to serve as Neithardt’s representative. Ac-
cordingly, we conclude that Huber did not have a pro-
tected right to remain at the Respondent’s River Edge
facility when ordered to leave and, on his refusal to do
so, the Respondent acted lawfully in causing him to be
arrested and filing trespass charges against him.
E. The Discharge of Huber
The judge concluded that the Respondent violated
Section 8(a)(3) and (1) of the Act by discharging
Huber based on his failure to observe its rule requiring
permission before conducting union business on the
Respondent’s premises during company time, and his
insubordination in thrice refusing to depart the Re-
spondent’s premises when ordered to do so. The judge,
having determined the Respondent’s rule to be unlaw-
ful, reasoned that any disciplinary action based on a
violation of that rule was accordingly unlawful. The
judge further found that in each of the three incidents
set forth above, Huber’s presence on the Respondent’s
premises was protected under the Act. The judge con-
cluded, therefore, that the Respondent’s directives to
leave were unlawful, and that Huber could not be con-
sidered insubordinate due to his refusal to heed those
orders. Accordingly, the judge concluded that there
was no lawful basis for Huber’s discharge.
In light of the judge’s finding that the Respondent’s
entire basis for the discharge of Huber was unlawful,
it was unnecessary for the judge to determine under
Wright Line20 whether the Respondent had dem-
onstrated that the discharge would have taken place for
legitimate nondiscriminatory reasons, regardless of
Huber’s protected activity. Contrary to the judge, we
have found above that the Respondent acted lawfully
in ordering Huber to leave its premises during the
Ehlers and Neithardt interviews. In light of the latter
findings, we must determine, under a Wright Line anal-
ysis, whether the Respondent has carried its burden of
demonstrating that the discharge would have taken
place based on Huber’s failure to heed the Respond-
ent’s lawful directives to leave the premises during the
Ehlers and Neithardt interviews, and regardless of
Huber’s protected activity at the Bergenfield garage on
June 23.
Initially, we find that the General Counsel estab-
lished a strong prima facie case that Huber’s protected
283NEW JERSEY BELL TELEPHONE CO.
21 The remedy for the Respondent’s unlawful discharge of Huber
is set forth in the remedy section of the judge’s decision.
22 283 NLRB 1173 (1987). See also Summitville Tiles, 300 NLRB
64 (1990).
conduct at the Bergenfield garage on June 23 was a
motivating factor in the Respondent’s decision to dis-
charge Huber. Indeed, the Respondent specifically con-
tended that the discharge was based, in part, on
Huber’s failure to abide by its rule on June 23—a rule
that we have found to be discriminatory and unlawful.
We further find that the Respondent has not met its
burden of demonstrating that the discharge would have
occurred regardless of the Bergenfield incident. The
Respondent has not shown that its normal practice is
to discharge employees who refuse to leave company
premises when lawfully directed to do so or who en-
gage in similar insubordinate conduct. ‘‘Under Wright
Line, an employer cannot carry its burden of persua-
sion by merely showing that it had a legitimate reason
for imposing discipline against an employee, but must
show by a preponderance of the evidence that the ac-
tion would have taken place even without the protected
conduct.’’ Hicks Oil & Hicksgas, 293 NLRB 84, 85
(1989). For these reasons, we agree with the judge that
Huber was unlawfully discharged by the Respondent.
AMENDED CONCLUSIONS OF LAW
1. Delete paragraph 3(b), (c), (d).
2. Add the following after paragraph 3(a).
‘‘b. Ordering Huber to leave its premises, causing
his arrest, and filing trespass charges against him, pur-
suant to its unlawfully discriminatory access rule,
thereby preventing Huber from advising other employ-
ees regarding their rights with respect to union rep-
resentation at investigatory interviews.’’
AMENDED REMEDY
Having found that the Respondent violated Section
8(a)(1) of the Act by, pursuant to its unlawfully dis-
criminatory access rule, ordering William Huber to
leave its Bergenfield facility on June 23, causing his
arrest, and filing trespass charges against him, we shall
order the Respondent to rescind its rule and to cease
giving effect thereto. We shall further order that the
Respondent petition the police department of the town
of Bergenfield and the Bergenfield municipal court to
request the withdrawal of all proceedings against Wil-
liam Huber stemming from his arrest at the Respond-
ent’s Bergenfield facility on June 23, and further to re-
quest that any reference to such proceedings be ex-
punged from his record, and that the Respondent pay
any expenses involved in the expunction proceedings.
Clark Manor Nursing Home Corp., 254 NLRB 455
(1981), enfd. in relevant part 671 F.2d 657 (1st Cir.
1982).21 We shall further order that the Respondent
pay to William Huber any legal expenses, plus interest
as computed in New Horizons for the Retarded,22 he
incurred in defense of the charges filed by the Re-
spondent stemming from Huber’s presence at the Ber-
genfield facility on June 23.
ORDER
The National Labor Relations Board orders that the
Respondent, New Jersey Bell Telephone Company,
Bergenfield, Oradell, and River Edge, New Jersey, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with disciplinary action
because of the conduct of their union representatives at
investigatory interviews.
(b) Ordering union officials to leave its premises,
causing their arrest, and filing criminal trespass
charges against them, pursuant to an unlawfully dis-
criminatory access rule.
(c) Discharging employees based on their failure to
comply with an unlawfully discriminatory access rule.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer William Huber immediate and full rein-
statement to his former job or, if that job no longer ex-
ists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed, and make him whole for any loss
of earnings and other benefits resulting from his dis-
charge, in the manner set forth in the remedy section
of the judge’s decision.
(b) Remove from its files any reference to the un-
lawful discharge and notify William Huber in writing
that this has been done and that the discharge will not
be used against him in any way.
(c) Rescind and cease giving effect to its unlawfully
discriminatory access rule requiring that union officials
obtain permission from management before conducting
union business on Respondent’s premises during com-
pany time.
(d) Petition the police department of the town of
Bergenfield and the Bergenfield municipal court to re-
quest the withdrawal of all proceedings against Wil-
liam Huber stemming from his arrest at the Respond-
ent’s Bergenfield facility on June 23, 1987, notify him
in writing that this has been done, and further request
that any reference to such proceedings be expunged
from his record, and pay any expenses involved in the
expunction proceedings.
(e) Pay to William Huber any legal expenses he in-
curred in defense of the charges filed by the Respond-
ent stemming from Huber’s presence at the Bergen-
284 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
1 I agree with the judge that the Respondent’s denying Huber ac-
cess to the Bergenfield facility was unlawful both because the Re-
spondent’s rule was discriminatory and because the denial of access
violated the test set forth in Tri-County Medical Center, 222 NLRB
1089 (1976). Contrary to my colleagues, I agree with the judge that
Tri-County is applicable here, as Huber was an off-duty employee.
2 About a month before the conduct at issue here, the Union had
concluded that the Respondent’s seccurity representatives were
harassing and intimidating employees during investigatory interviews
and twisting information provided by employees. The Union’s vice
president had advised union delegates to suggest to employees sub-
ject to such interviews that they not answer the same question a sec-
ond time.
3 NLRB v. J. Weingarten, 420 U.S. 251 (1975).
field facility on June 23, 1987, with interest computed
in the manner set forth in the amended remedy section.
(f) Post at its Bergenfield, Oradell, and River Edge,
New Jersey facilities copies of the attached notice
marked ‘‘Appendix.’’23 Copies of the notice, on forms
provided by the Regional Director for Region 22, after
being signed by the Respondent’s authorized represent-
ative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material.
(g) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
MEMBER DEVANEY, concurring in part, dissenting in
part.
I concur in finding that the Respondent violated Sec-
tion 8(a)(1) of the Act by denying Union Delegate
Huber access to its Bergenfield facility; causing his ar-
rest outside that facility; and filing criminal trespass
charges against him.1 I also concur in finding that the
Respondent’s discharge of Huber violated Section
8(a)(3) of the Act. Unlike my colleagues, I would ad-
ditionally find that the Respondent violated Section
8(a)(1) by ejecting Huber from employee Ehlers’ in-
vestigatory interview; causing Huber’s arrest; and fil-
ing criminal trespass charges against Huber, as well as
by barring Huber from employee Neithardt’s investiga-
tory interview; again causing Huber’s arrest; and filing
criminal trespass charges against him.
It is important to consider the background to Re-
spondent’s ejection of Huber from Ehlers’ interview.
Respondent conducted an investigatory interview of
employee Woods immediately preceding the Ehlers
interview. Woods was employed by the Respondent as
a splicer. When Woods reported for work at the Re-
spondent’s Bergenfield garage about a week after the
incident in which a ladder fell on Supervisor Siegel, he
was not given a work assignment but instead was told
that he would be going to a meeting with Supervisor
Hoffman. Woods asked to make a telephone call to
Union Delegate Huber, but Hoffman denied his re-
quest. Woods managed to apprise Union Delegate
Agresta of what was happening, and Agresta notified
Huber that Woods was being taken to the Respond-
ent’s Oradell office but that no one knew the reason
for the action.
Huber was able to arrive at the Oradell office only
a few minutes after Hoffman and Woods and was per-
mitted to talk to Woods. Woods told Huber that he did
not know why the Respondent’s security representa-
tives wanted to interview him.
Two of the Respondent’s security representatives,
Schadewald and Esposito, conducted Woods’ inter-
view. After Schadewald completed asking Woods a se-
ries of questions, Schadewald began asking the same
questions again. Woods answered each question at
least twice, but when certain questions were asked a
third time, Woods responded that he had already an-
swered and would not answer the same question again.
Woods felt that the security representatives were ‘‘try-
ing to twist everything around.’’2 The Respondent’s
security representatives persisted in asking repetitious
questions. As Woods’ Weingarten3 representative,
Huber remarked that Woods already had answered
each question and that they should move on to a new
area. Security Representative Esposito then lectured
Huber on the Respondent’s guidelines for the conduct
of union representatives in investigatory interviews.
When Huber responded that he was guided by the par-
ties’ contract and the Union’s guidelines, not the Re-
spondent’s guidelines, Esposito began pacing around
the room.
The Respondent’s security representatives continued
asking Woods repetitious questions, and Huber and
Woods continued to reply in progressively louder tones
that the questions had been asked and answered.
Schadewald began the ‘‘written’’ portion of the inter-
view, which consisted of asking the same questions
again and writing down the answers, to be presented
to the employee to sign. Woods again refused to an-
swer redundant questions and Huber continued to point
out that the questions had been asked before. Esposito
warned Huber that he could be subject to disciplinary
action because of his interruptions. Esposito’s written
summary of the interview, which Woods was asked to
read, included warnings that Woods was impeding the
investigation and could be subject to discipline. At the
end of the interview, Woods was suspended indefi-
nitely on suspicion of withholding information.
Ehlers, who also worked for the Respondent as a
splicer at the Bergenfield garage, was then brought
285NEW JERSEY BELL TELEPHONE CO.
into the room for an investigatory interview. He re-
quested Huber to serve as his Weingarten representa-
tive. Schadewald began the interview, asking a number
of questions which Ehlers answered. When Schade-
wald began to repeat some of the questions, Huber
interjected that Ehlers had already answered them.
Esposito told Huber that he had no right to interrupt
and that Ehlers must answer the questions. Schadewald
continued to ask repetitive questions. Huber and Ehlers
responded that the questions had already been an-
swered and suggested that new questions be asked.
Huber accused the security representatives of conduct-
ing a ‘‘fishing expedition.’’ Esposito warned Huber
that he could be disciplined for disruptive behavior.
After similar exchanges continued, Schadewald
warned that Ehlers would be discharged if Huber con-
tinued to interrupt. Huber replied that he hoped that
Schadewald’s statement had been picked up on the
tape recorder, because it could be a serious unfair
labor practice. Schadewald and Esposito dropped their
pencils, threw up their hands, and Esposito jumped out
of his seat, upset at the implication that the Respond-
ent was secretly recording the interview. Esposito stat-
ed that Huber had made a serious accusation and sug-
gested summoning the police to check if the room was
‘‘bugged.’’ Huber replied that the interview should
continue, but Schadewald and Esposito called in a
local management representative, who confirmed that
the room was not ‘‘bugged.’’
Schadewald then resumed the interview, asking an-
other repetitive question, and Huber again interjected
that the question already had been asked. Schadewald
ordered Huber to leave the room, stating that his serv-
ices were no longer needed. Huber refused.
Schadewald stated that Huber had ‘‘disrupted and frus-
trated the interview to the point that we were getting
nowhere.’’ The Respondent had Huber escorted from
the building by the police, had him arrested, and filed
a criminal trespass complaint against him. At the end
of the interview, Ehlers was told that he was being
suspended for withholding evidence and not cooperat-
ing. Ehlers responded, ‘‘You’re wrong, this is wrong,
this whole thing is wrong.’’
Because I find that Huber’s conduct was within the
scope of that permitted a Weingarten representative, I
agree with the judge that the Respondent’s expulsion
of Huber from Ehlers’ investigatory interview violated
Section 8(a)(1). In my view, Huber’s objection to the
security representative’s persistent repetition of ques-
tions did not turn Woods’ and Ehlers’ interviews into
adversarial forums. Rather, Huber’s objections con-
stituted a legitimate exercise of the Union’s proper role
in assisting employees undergoing investigatory ques-
tioning. In affirming that an employee has a right to
the assistance of a union representative in an investiga-
tory interview, the Supreme Court in Weingarten de-
clared:
A single employee confronted by an employer in-
vestigating whether certain conduct deserves dis-
cipline may be too fearful or inarticulate to relate
accurately the incident being investigated, or too
ignorant to raise extenuating factors. [Weingarten,
above, 420 U.S. at 262–263.]
The Court further noted:
There has been a recent growth in the use of so-
phisticated [investigative] techniques . . . [that]
increase not only the employees’ feelings of ap-
prehension, but also their need for experienced as-
sistance in dealing with them. Thus, often . . . an
investigative interview is conducted by security
specialists; the employee does not confront a su-
pervisor who is known or familiar to him, but a
stranger trained in interrogation techniques.
[Weingarten, above, 420 U.S at 265 fn. 10.]
The concerns expressed by the Court in Weingarten
are directly implicated in the present case. Here,
Woods and Ehlers, both telephone company splicers,
reported to work one morning and were abruptly taken
to investigatory interviews without prior notice and
without being informed of the subject matter of the
interviews. After being told that he was to be taken to
a ‘‘meeting,’’ Woods was denied permission to tele-
phone Union Delegate Huber. The interviews them-
selves were not conducted in the familiar surrounding
of Woods’ and Ehlers’ workplace. Instead, Woods and
Ehlers were transported to the Respondent’s district of-
fice for questioning. Rather than being questioned by
supervisors known to them, Woods and Ehlers were
interrogated by specially trained security representa-
tives. Shortly before Woods’ and Ehlers’ questioning,
the Union had determined that the Respondent had in-
stituted a practice of harassing and intimidating em-
ployees in investigatory interviews and twisting infor-
mation they provided.
Additionally, the Respondent’s security representa-
tives told Woods and Ehlers in their interviews that the
Respondent had reason to believe that they had knowl-
edge of the incident concerning Supervisor Siegel.
Thus, Woods and Ehlers likely feared that the Re-
spondent would be dissatisfied unless they supplied in-
formation about the incident, regardless of whether
they actually knew such information, as the Respond-
ent would likely not believe denials of such knowl-
edge. They also knew that they could be disciplined or
discharged based on what occurred in their interviews.
Indeed, Ehlers was told during his interview that he
could be discharged based on Huber’s conduct in the
interview, and Woods and Ehlers both were suspended
immediately following their interviews.
286 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Under these circumstances, Ehlers’ responding to many questions
by stating that he did not know or did not remember did not, in my
view, diminish the right of Ehlers or his Weingarten representative
to object to the Respondent’s security representatives’ highly repeti-
tious questioning.
5 See Southwestern Bell Telephone Co., 251 NLRB 612 (1980);
Texaco, Inc., 251 NLRB 633 (1980).
6 See Postal Service, 288 NLRB 864 (1988).
7 Regarding the latter two actions, I find the test set out in Johnson
& Hardin Co. to have been met.
1 305 NLRB 690 (1991).
2 461 U.S. 731 (1983).
3 This case does not involve a contention that the criminal pro-
ceeding was preempted or that it had an unlawful objective. See Bill
Johnson’s Restaurants, supra at fn. 5.
4 I do not reach the issue of whether the criminal proceeding had
a reasonable basis.
Under these circumstances, Woods and Ehlers no
doubt felt apprehensive when suddenly taken before
the Respondent’s security representatives for question-
ing. The circumstances and surroundings they faced—
being abruptly subjected to questioning by unfamiliar
security specialists away from the employees’ normal
workplace—were intimidating. Moreover, they no
doubt feared discipline in any event: if they declined
to make incriminating statements, they would be dis-
ciplined for withholding information, but if they did
give incriminating statements, they would be dis-
ciplined for participating in or failing to report the in-
cident in question.4
In my view, Huber fulfilled the proper role of a
Weingarten representative under these circumstances
by aggressively objecting to the security representa-
tives’ tactics which the judge found could reasonably
be viewed as harassing. As the union representative re-
sponsible for protecting Woods’ and Ehlers’ rights in
the interviews, Huber could not be compelled to re-
main mute. In light of the high-pressure situation in
which the employees were placed, Huber was justified
in aggressively objecting to the security representa-
tives’ repetitive questions. To do less might have al-
lowed the employees to be pressured into unwarranted
admissions. It is well established that a Weingarten
representative may not be required to remain silent
during an investigatory interview5 and has a right to
interrupt to voice objections.6 In finding Huber’s con-
duct unprotected, my colleagues truncate the proper
role of a union representative in an investigatory inter-
view, requiring him to be a passive observer in what
is often a highly charged situation with the most severe
potential employment ramifications. I decline to join in
eviscerating this important employee right.
Having concluded that Huber’s conduct as a
Weingarten representative was permissible, I agree
with the judge that the Respondent violated Section
8(a)(1) by expelling Huber from Ehlers’ investigatory
interview, causing Huber’s arrest, and filing criminal
trespass charges against Huber. In finding the latter
two actions violative, I find that the test set forth in
Johnson & Hardin Co., 305 NLRB 690 (1991), has
been met. In light of the protected nature of Huber’s
conduct as a Weingarten representative, Respondent
lacked a reasonable basis for causing his arrest and fil-
ing criminal trespass charges against him.
I also reject Respondent’s argument that Huber’s
conduct during Ehlers’ interview and in subsequently
entering the Bergenfield garage justified the Respond-
ent’s subsequent refusal to permit Huber to serve as
Neithardt’s Weingarten representative. Therefore, I
would affirm the judge’s finding that the Respondent
violated Section 8(a)(1) by refusing to permit Huber to
serve as Neithardt’s Weingarten representative, direct-
ing Huber to leave the premises, causing Huber’s ar-
rest, and filing criminal trespass charges against him.7
MEMBER RAUDABAUGH, dissenting in part.
I do not agree that the Respondent violated the Act
by summoning the police and instituting criminal pro-
ceedings. More particularly, I do not believe that the
General Counsel has established that such conduct was
motivated by an intention to retaliate against a Section
7 exercise. The judge found that Huber, after being
asked to leave the Respondent’s premises, refused to
do so and told the Respondent to ‘‘go call the police
and go shit in your hat.’’ Further, Huber said that he
would leave only when he finished his union business.
Consistent with that defiant attitude, Huber stayed on
the premises until he had finished his union business.
In these circumstances, I would conclude that the Re-
spondent did not have a retaliatory motive for calling
the police and following up by filing the appropriate
complaint. The Respondent engaged in this conduct
because that was the only alternative left open to it by
Huber’s defiant conduct.
Concededly, Huber had a right to be free from dis-
parate treatment in his effort to engage in Section 7 ac-
tivity on the Respondent’s premises. However, as rec-
ognized in Johnson & Hardin Co.,1 and in Bill John-
son’s Restaurants v. NLRB,2 the mere fact that an indi-
vidual is engaged in Section 7 activity does not mean
that a lawsuit in response is unlawful. Because of the
importance of safeguarding access to the courts, such
conduct is lawful unless it is for a retaliatory motive
and has no reasonable basis.3 For the reasons set forth
above, I do not believe that the General Counsel has
established a retaliatory motive.4 Accordingly, the Re-
spondent was privileged to seek the protection of the
law enforcement authorities of the State of New Jer-
sey.
287NEW JERSEY BELL TELEPHONE CO.
1 All dates hereinafter are in 1987 unless otherwise indicated.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT threaten employees with disciplinary
action because of the conduct of their union represent-
atives at investigatory interviews.
WE WILL NOT order union officials to leave our
premises, cause their arrest, and file criminal trespass
charges against them, pursuant to our unlawfully dis-
criminatory access rule.
WE WILL NOT discharge employees based on their
failure to comply with an unlawfully discriminatory
access rule.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer immediate and full reinstatement to
William Huber to his former position or, if that job no
longer exists, to substantially equivalent position, with-
out prejudice to his seniority or any other rights or
privileges previously enjoyed and WE WILL make him
whole for any loss of earnings and other benefits re-
sulting from his discharge, plus interest.
WE WILL notify William Huber that we have re-
moved from our files and reference to his discharge
and that the discharge will not be used against him in
any way.
WE WILL rescind and cease giving effect to our un-
lawfully discriminatory rule requiring that union offi-
cials obtain permission from management before con-
ducting union business on our premises during com-
pany time.
WE WILL petition the police department of the town
of Bergenfield and the Bergenfield municipal court to
request the withdrawal of all proceedings against Wil-
liam Huber stemming from his arrest at our Bergen-
field facility on June 23, 1987, notify him in writing
that this has been done, and further to request that any
reference to such proceedings be expunged from his
record, and WE WILL pay any expenses involved in the
expunction proceedings.
WE WILL pay to William Huber any expenses he in-
curred in defense of the charges we filed against him
stemming from his presence at our Bergenfield facility
on June 23, 1987, with interest.
NEW JERSEY BELL TELEPHONE CO.
Gary Carlson, Esq., for the General Counsel.
James Brady, Esq., of Newark, New Jersey, for the Respond-
ent.
Paul Levinson, Esq. (Mayer, Weiner & Levinson, Esqs.), of
Demarest, New Jersey, for the Charging Party.
DECISION
STATEMENT OF THE CASE
STEVEN B. FISH, Administrative Law Judge. Pursuant to
charges and amended charges filed in Cases 22–CA–15099
and 22–CA–15119 by Local 827, International Brotherhood
of Electrical Workers, AFL–CIO (the Union or Local 827),
the Acting Regional Director for Region 22, issued an order
consolidating cases, consolidating complaint and notice of
hearing on August 24, 1987.1 Said complaint alleges that
New Jersey Bell Telephone Company (Respondent) engaged
in various actions in violations of Section 8(a)(1) of the Act,
in substance, by denying the request of an employee to be
represented at a ‘‘Weingarten’’ interview by ejecting Union
representative William Huber from such interview, and caus-
ing his arrest when he refused to leave the premises; by
threatening an employee with discharge if Huber did not re-
frain from acting as said employees’ union representative; by
directing Huber to leave the premises, summoning police and
having Huber arrested, because Huber was advising employ-
ees of their ‘‘Weingarten’’ rights; by denying the request of
another employee to be represented by the Union during a
‘‘Weingarten’’ interview, by refusing to permit Huber to be
present at said interview, by directing Huber to leave the
premises, summoning the police to escort him out and filing
trespassing charges against him because he sought to con-
tinue to represent said employee; Section 8(a)(5) of the Act
by promulgating a requirement that union representatives
must obtain permission in order to enter one of Respondent’s
buildings; and Section 8(a)(1) and (3) of the Act by discharg-
ing Huber because of his union and protected activities. The
trial with respect to the above allegation was heard before
me on March 7, 8, 9, 10, 11, and 16, 1988, and was closed
by Order on March 18, 1988.
Briefs have been received from all parties and have been
carefully considered.
Based on the entire record, including my observation of
the demeanor of the witnesses along with the consistency and
inherent probability of testimony, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Respondent is a corporation with an office and place of
business in Newark, New Jersey, and in various other loca-
tions in New Jersey, where it is engaged in the furnishing
of telephone communication services. Annually, Respondent
derives gross revenues in excess of $100,000, and purchases
and causes to be delivered to its New Jersey locations, goods
and materials in excess of $50,000 directly from States other
than the State of New Jersey.
It is admitted and I so find that Respondent is now, and
has been at all times material herein, an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
288 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 These employees install and maintain telephones at homes or
places of business.
It is also admitted and I find that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. FACTS
A. Background
The Union has represented for many years employees em-
ployed by Respondent in various locations throughout the
State of New Jersey.
At the time of the hearing the Union represented approxi-
mately 12,000 employees in two bargaining units, one com-
prised of employees who work in the plant engineering de-
partment,2 and one consisting of employees who perform ac-
counting tasks, which includes billing and processing of the
telephone bills. The Union hierarchy includes, from top to
bottom, the president-business manager, vice president, sec-
retary-treasurer, executive board members, general delegates,
delegates, and alternate delegates.
Respondent maintains a garage at 30 McDermott Place,
Bergenfield, New Jersey (the Bergenfield garage or the ga-
rage). At this facility, Respondent employs approximately 50
employees in the classifications of splicer and special service
technician, who are represented by the Union. Bob Voss,
Richard Hoffman, and William Siegel are Respondent’s su-
pervisors of these employees at the Bergenfield garage.
These supervisors report to Larry Houghtalin manager of Re-
spondent’s Pascat Valley and Hackensack sectors, whose of-
fice is in Oradell, New Jersey. Houghtalin in turn reports to
Robert Scairpon, Respondent’s director of installation and
maintenance.
Splicers are responsible for maintaining Respondent’s tele-
phone cables. They generally report to the garage by 8 a.m.
They obtain their work assignments, receive instructions
from their supervisors, stock their trucks, and usually leave
the garage to perform their assignments by about 8:30 to
8:45 a.m.
William Huber is the Union’s general delegate with ap-
proximately 1000 employees under his jurisdiction, including
the 50 employed at the Bergenfield garage. Mike Woods, a
splicer, assigned to that garage was the delegate representing
the splicers, who is responsible for conducting craft meetings
and processing grievances. Daniel Ehlers, another splicer as-
signed to that garage, is an alternate delegate, who assists
and fills in for Woods as delegate when Woods is absent or
unavailable.
B. Respondent’s Security Representatives
Respondent employs a staff of security representatives,
who are responsible for investigating breaches of security
and conducting investigatory interviews. Respondent fur-
nishes training to these representatives regarding techniques
to be used in interrogations. Some of the representatives also
receive training from police departments and Federal inves-
tigative agencies.
Investigatory interviews are generally conduct by two se-
curity representatives, one who primarily asks the questions,
and the other who writes down the answers and or other per-
tinent portions of the interview. Employees are informed
about the purpose of the interview, given union representa-
tion if requested and are allowed to consult with such rep-
resentative prior to and during the interview. A request is
made by the security representatives to tape the interview,
and if the employee refuses permission, the interview is not
taped. After questions are asked and answers recorded during
what Respondent terms the ‘‘oral’’ portion of the interview,
the security representatives sum up the previous responses to
make sure all pertinent points are covered. At that point the
representatives seek to document the interview in a more for-
malized written portion. The questions are asked and answers
are recorded in more detail in the written portion of the inter-
view. The employee is then asked to read it, insure its accu-
racy, make corrections and to sign the statement taken by the
security representatives.
Representatives of Local 827 came to believe that Security
Representatives of Respondent were harassing and intimidat-
ing employees, and ‘‘twisting’’ information that employees
provided during the course of these interviews. Accordingly
on May 27, Union Vice President John Amadeo issued ‘‘sug-
gested guidelines’’ to general delegates and delegates, setting
forth advice that it believed union representatives should give
to employees who are subject to investigatory interviews.
These guidelines include advising employees that no tape re-
cording should be permitted, the member has the right to
caucus, know the exact subject of the interview, and the right
not to answer a question if the answer may lead to discipline.
The guidelines also provide examples of unfair tactics which
the Union believes that Security has no right to use during
the interview. These ‘‘unfair tactics,’’ include asking irrele-
vant questions, putting words in member’s mouth, asking
leading questions, interrupting answers and asking double
barrelled questions. Other recommendations made in the
‘‘guidelines’’ include, advising employees not to listen to Se-
curity read back their answers, advising them not to sign or
initial the Security interview statement and advising the em-
ployees not to answer the same questions a second time.
The concluding portion of the ‘‘guidelines’’ reads, ‘‘the
final decision on all advice and recommendations rests with
the Union member, not the Delegate. The advice and rec-
ommendations is only for guidance and need not be
mandatorally [sic] followed by the member.’’
C. The Investigatory Interviews on June 22
On June 15, a dispute arose between Siegel and Brendan
Leen a splicing technician, as to whether a maintenance job
at Nussbaum’s Auto Wreckers could be done safely. Imme-
diately following this dispute, Siegel returned to his office at
the garage. As he entered, a ladder which had apparently
been rigged to do so, fell on him. Additionally, his office
had been ransacked.
This incident resulted in a decision by Respondent to con-
duct an investigation to determine who was responsible. Se-
curity Representative Robert Schadewald was designated as
the representative in charge of the investigation. Initially,
statements were taken from management representatives.
Voss’ statement revealed that he was in Siegel’s office at
4:17 p.m. on June 22 and the office was not ransacked. He
also noticed at that time that employees Mike Woods, Ron
Agresta, Dennis Collins, Lou Argenio, and Rudy Mikowski
were in Siegel’s office. After the incident Voss claimed in
his statement that he expressed his criticism to Woods.
289NEW JERSEY BELL TELEPHONE CO.
Woods allegedly responded, ‘‘You’re playing with a man’s
safety.’’
Siegel’s statement revealed that as he entered the garage
he saw employee Daniel Ehlers standing outside his office
and a member of unidentified employees leaving his office
and laughing. Immediately thereafter he entered the office,
and as set forth above, was hit with the ladder and observed
that his office had been ransacked.
Schadewald in connection with the investigation, formed
six teams of two investigators each to conduct interviews, at
three locations. The locations were Respondent’s district of-
fice at 514 Kinderkamack Road in Oradell, a central office
in River Edge, and a central office in Little Ferry.
Schadewald prepared a booklet for each of the security rep-
resentatives for use during the interviews. This booklet con-
sisted of the questions to be asked, objectives of the inves-
tigation, guidelines regarding responsibilities of the security
representatives and union representatives at investigatory
interviews, ‘‘local management contact,’’ ‘‘local union rep-
resentative,’’ floor plan of the Bergenfield garage, statements
taken from management officials regarding the incident, a
copy of a New Jersey statute defining assault, and a copy of
general work rules or guidelines.
Since it was likely that union representation would be re-
quested, Houghtalin made efforts to make union representa-
tives available for this purpose. For the interviews scheduled
to be held at Kinderkamack Road, he selected Carol
Baumuller to be made available. Baumuller was a Local 827
delegate representing clerical employees who work at that lo-
cation. For the River Edge interviews, Houghtalin chose Bob
David, who was a recently appointed shop steward at Re-
spondent’s Emerson garage. Houghtalin instructed Al Draper,
David’s foreman not to assign David any work, and keep
him available at the Emerson garage, in case he was needed
to serve as a union representative. As for the Little Ferry
interviews, Houghtalin chose Kaufman who worked in Re-
spondent’s Hackensack location. Houghtalin instructed
Kaufman’s foreman to keep him on ‘‘standby’’ so he could
be available to serve as a union representative, if necessary.
Finally on Friday, June 19, Houghtalin told two of Respond-
ent’s managers that he might need to ‘‘borrow’’ some Local
827 delegates who were under their supervision to serve as
union representatives at these interviews on June 22.
On June 18, at a meeting of Respondent’s representatives
and officials, the question came up of what action should be
taken if union representatives became ‘‘disruptive’’ at the
interviews. It seems that in a prior investigatory interview
conducted by Schadewald and security representative
Esposito, of employee Cilli, it was necessary to terminate the
interview because of conduct by Huber that the security rep-
resentatives considered ‘‘disruptive.’’ It was decided that the
police would be called if a problem developed and a ‘‘dis-
ruptive delegate’’ would not leave. The local police were
contacted in advance to notify them that their assistance
might be required. The police informed Respondent’s offi-
cials that the police would not assist Respondent unless it
agreed to file criminal charges.
On June 22, Woods was not given an assignment and told
by Hoffman to ‘‘hang around.’’ Five other employees were
similarly instructed. At 8:15 a.m. Hoffman informed Woods
that he would be going with Hoffman to a meeting. Woods
asked Hoffman if he could make a phone call to Billy Huber,
but Hoffman refused permission for him to do so. As Woods
went to get his lunch, he told Ron Agresta, another union
delegate, to contact Huber and let him know what was hap-
pening. Agresta contacted Huber and told him that Woods
was being taken to the Oradell district office and no one
knew why.
Huber who was scheduled to be at Oradell location that
day for a grievance meeting, told Agresta that he would look
into the matter. Agresta relayed that information to Woods
as he was about to get into Hoffman’s car.
Hoffman drove Woods to the Oradell office, and escorted
him into a conference room at 8:52 a.m. where Schadewald
and Esposito were present. Woods requested that Huber
serve as his union representative, mentioning that Huber was
going to be at the Oradell office on that day. The Security
representatives replied that they would wait until 9 a.m. and
if Huber didn’t arrive by then, they would proceed with the
interview, using the nearest delegate. Huber arrived at
Oradell at 8:55 a.m., rescheduled his grievance meeting, and
arrived at the conference room at 9:06 a.m. The security rep-
resentatives introduced themselves, and informed Huber and
Woods that they were investigating incidents that had oc-
curred at the Bergenfield garage on June 15. Huber and
Woods were then permitted to confer in the hallway. In the
hallway, Huber asked why the security representatives want-
ed to interview Woods. Woods replied that he didn’t know.
Huber explained that Woods should answer the questions of
the security representatives, and cooperate with them.
After asking some preliminary questions such as his name,
and where he was employed, Schadewald focused in on the
events of June 15. He asked whether Woods was in the Ber-
genfield garage on June 15 after 2:30 p.m.? Woods replied
that he did not recall, but he didn’t think so. Many of
Woods’ responses to the questions asked were either, I don’t
know, I don’t recall or I don’t remember. Woods did provide
more specific answers to a few questions, such what time he
arrived at the Bergenfield garage after completing your days
work on June 15? Woods responded to this question, around
4 p.m. Woods was also asked and answered questions such
as who else was in the garage that evening?, to which he an-
swered, that he couldn’t say off hand, but employee Bernie
Baudish was with him. To the question, did he go into
Siegel’s office, Woods replied that he went in with Voss at
4:05 p.m. Woods was also asked about the remark that he
allegedly made to Voss, i.e., ‘‘they are playing with an
man’s life and safety.’’ Woods denied making such a state-
ment, and further denied saying anything like that to Voss.
The responses that Woods made to these questions were re-
corded by the security representatives.
Schadewald then began to ask Woods the same questions
two or three times. Some of these repetitious questions were
the time that he arrived at the Bergenfield garage, and
whether he knew Siegel. Woods answered each of these rep-
etitious questions at least twice. Finally when certain ques-
tions were asked a third time, Woods responded that he had
already answered that question, and would not answer the
same question again. Woods testified that he felt that security
representatives were setting him up, and ‘‘trying to twist ev-
erything around.’’
When the security representatives continued to ask ques-
tions that Woods had already answered, Huber became in-
volved and remarked that Woods already had answered that
290 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Esposito also began speaking in progressively louder tones.
Schadewald on the other hand did not raise his voice during the
interview.
4 At times when it became clear that a question was repetitive,
Huber would interrupt the question before the representative was fin-
ished asking the question.
question, and to move on to a new area. Huber testified that
in his view the representatives were ‘‘badgering’’ Woods by
repetitious questioning, and that they were trying to ‘‘en-
trap’’ Woods and put words into Woods’ mouth.
Esposito then interjected, and asked Huber if he was fa-
miliar with Respondent’s ‘‘personnel practices’’ and guide-
lines for ‘‘union representation at meetings between an em-
ployee and management.’’ Huber replied that he was not.
Esposito read portions of the ‘‘guidelines’’ to him. These
guidelines include the fact ‘‘that an investigatory interview is
not a bargaining session nor an adversary proceeding.’’ It
adds that a union representative is ‘‘present to assist the em-
ployee and may attempt to clarify facts or suggest other em-
ployees who may have knowledge of them. Management,
however is free to insist that it is interested in, at that time
in hearing the employee’s own account of the matter under
investigation.’’
The role of the union representative was further discussed,
and Huber was instructed that he does not have a ‘‘protected
right to engage in conduct that frustrates the Company’s
right to hear the employee’s own account of the matter under
investigation. If you engage in such disruptive conduct, you
may be subject to discipline and the interview will be discon-
tinued and another union representative will be provided to
the employee.’’ Esposito asked Huber if he understood these
guidelines. Huber replied that he did not. Esposito read the
document a second and then a third time to Huber. Huber
again asserted that he did not understand these guidelines,
but in any event added that he was guided by the collective
bargaining agreement and Local 827’s guidelines, not Re-
spondent’s personnel practices. Esposito began getting upset
and started pacing around the room. Repetitious questions
continued to be asked, and both Huber and Woods would
reply in progressively louder tones that the particular ques-
tion was already asked and answered and that the security
representatives should ask new questions.3
At about 9:40 a.m. Schadewald began to take the ‘‘writ-
ten’’ statement, pursuant to Respondent’s normal practice.
He so informed Huber and Woods, and began to ask prelimi-
nary questions such as name and age, and Huber interjected
that Respondent already had that information in its records.
After at first refusing to answer, Woods responded to these
questions. Schadewald began inquiring about the incident of
June 15 by asking again what time Woods had returned to
the garage? Woods again refused to answer stating that the
question had already been answered. Schadewald asked if
Woods would answer any questions about the June 15 inci-
dent? Huber replied that Woods already had answered the
questions, and that Respondent had already written down his
responses during the so called ‘‘oral’’ portion. Huber sug-
gested that the security representatives merely transfer that
information to the written part. The security representatives
did not take Huber’s suggestion, and continued to ask ques-
tions that they had already asked in the prior portion of the
interview. Both Woods and Huber either together or alter-
natively responded that the question was already asked and
answered, and that Woods would answer only new ques-
tions.4 Esposito informed Huber in a loud voice that because
of his interruptions, he could be subject to disciplinary ac-
tion. Huber yelled back to Esposito, ‘‘put up or shut up.’’
At 10:07 a.m. Huber and Woods left the room to go to
the bathroom. They returned at 10:10 a.m. Woods was again
asked if he would answer questions and reference was again
made to Respondent’s personnel practice and code of con-
duct. Woods was reminded that he was leaving himself open
to disciplinary action if he did not answer the questions.
Woods responded that he has responded to all questions
asked of him. Huber leaned over the table, pointed his finger
at Schadewald and said ‘‘you already asked that question.
Ask a new question.’’ Huber was warned by Esposito once
again that he was being disruptive and subject to discipline.
Huber replied, ‘‘put up or shut up.’’ Schadewald then wrote
up a statement consisting of 5 pages, which essentially con-
sists of his asking questions such as what time Woods ar-
rived at the garage after work, and if he would answer any
questions at all. The statement indicates that Woods replied
that he already answered the question. Additionally the state-
ment includes warnings to Woods that he was impeding the
investigation and he could be subject to discipline.
Schadewald then gave Woods the opportunity to read the
statement, make deletions or corrections and was asked to
sign the document. Woods refused to comply with any of
these requests, and the statement so reflects.
The security representatives then left the room. Shortly
thereafter, Houghtalin entered, asked Woods for his company
I.D. card, and informed him that he was being suspended in-
definitely for suspicion of withholding information pertinent
to the alleged sabotage and assault on a supervisor, suspicion
of sabotaging company property and suspicion of assault.
As Huber was leaving the conference room, Ehlers was
brought in. Huber sat down. Schadewald asked Huber to
leave, since his presence had not been requested. Ehlers then
asked for union representation and requested that Ehlers
serve as his representative. The security representatives
agreed, and permitted Ehlers and Huber to confer in the hall-
way.
When they returned, Schadewald commenced the inter-
view. After the usual preliminary questions, Schadewald
asked about the events of June 15. Some of his questions in-
cluded what time Ehlers returned to the garage, did he know
anything about the incident in the garage, who else was in
that day; what he did between 4 and 4:30 p.m.; did he ever
use the ladder; and where was he when Siegel came into the
garage. Ehlers answered all of the questions posed to him,
but some of the responses were I don’t know or I don’t re-
call or I am not sure. The security representatives believed
that these responses of Ehlers were not sufficiently forthcom-
ing, since their information indicated that Ehlers should have
been able to answer these questions with more precise infor-
mation. Schadewald advised Ehlers that they (the representa-
tives) had information that Ehlers had direct knowledge of
certain events and it was in his best interest to cooperate.
Schadewald then began to repeat some of the previous
questions that he had asked. Huber interjected that Ehlers
had already answered these questions. Esposito reminded
291NEW JERSEY BELL TELEPHONE CO.
Huber that he had no right to interrupt and answer for
Ehlers, and that Ehlers must answer the questions.
Schadewald continued to ask questions that had already
been asked and answered, sometimes twice or three times. At
that point both Huber and Ehlers would respond that the
questions were already answered, and suggested that new
questions be asked. Huber also accused the security rep-
resentatives of conducting a ‘‘fishing expedition,’’ and added
that they should conduct themselves in a more professional
manner. When Huber would interject his views, Esposito
would remind him of his responsibilities as a union rep-
resentative, and added that he could be discipline if he en-
gaged in ‘‘disruptive’’ behavior. A similar scenario continued
for several other questions, with the voices of Huber and
Esposito continuing to get progressively louder.
Finally after another repetitious question, once again
Huber asserted that the question had already been answered,
mentioned his ‘‘fishing expedition’’ charge and again sug-
gested that the security representatives conduct themselves in
a professional manner. On this occasion, Schadewald in-
formed Ehlers that if Huber continued to interrupt, that
Ehlers would be discharged. Huber replied that he hoped that
Schadewald’s remarks had been picked up on the tape re-
corder, because it could be the subject of a serious unfair
labor practice charge. At that point both Schadewald and
Esposito dropped their pencils and put their hands up in the
air. Esposito jumped out of his seat, became visibly upset at
the accusation that the interview was recorded. Esposito stat-
ed in a loud voice that Huber had made a serious accusation
and suggested calling in the police to see if the room was
bugged. Huber replied that the interview should continue.
The security representatives then called in Paul Livilli local
management representative to confirm that the room was not
bugged.
After Livilli left, Schadewald asked one more question
which had already been asked and answered. Huber again
interjected, ‘‘you’ve already asked that question, ask a new
question.’’ Schadewald then told Huber that his services
were no longer required and to leave the room. He added
that Huber was being ‘‘disruptive’’ and that the interview
will be continued with Ehlers being represented by a new
union delegate. Huber refused to leave and insisted that he
had a right to be there. Schadewald repeated that Huber had
disrupted the interview and his services were in longer re-
quired. He assured Huber that the interview would not con-
tinue until Respondent found another union representative to
represent Ehlers. Huber continued to refuse to leave, so
Schadewald summoned Houghtalin. Schadewald informed
Houghtalin that Huber had ‘‘disrupted and frustrated the
interview to the point that we were getting nowhere.’’ He
added that Huber had refused Schadewald’s request to leave.
Houghtalin informed Huber that since Schadewald had no
need for his services, his union business was completed, and
he should therefore leave the premises. Huber insisted that
he had a right to be there, would not leave, and suggested
that Respondent call the police.
Houghtalin then left the room and called the police to re-
move Huber. Shortly thereafter the police arrived. Huber
again refused to leave, claiming this was a labor dispute, and
the police should not be involved. The police escorted Huber
from the building and took him to the police station. An hour
or so later Paul Livilli came to the police station and signed
a complaint against Huber alleging ‘‘criminal trespass.’’
About 10 minutes after Huber was escorted out of the
building, Carol Baumuller arrived at the conference room.
The security agents advised her that they were investigating
incidents at the Bergenfield garage, and permitted her to con-
fer with Ehlers. During this conference Ehlers informed
Baumuller that Huber had been arrested, but did not tell her
why. After Baumuller and Ehlers reentered the conference
room, Schadewald resumed questioning Ehlers. At first
Schadewald asked Ehlers questions such as whether or not
he had ever seen a picture of a fish that was shown to him,
and whether he had ever made a phone call to some
unmentioned person and threatened his kids. Ehlers replied
no to both of these questions. Ehlers was then asked to give
a handwriting sample. He refused, stating that he would have
to get George Cookson’s approval first.
At that point Schadewald then returned to the events of
June 15, and began to ask Ehlers about the ladder, when he
returned to the garage, did he use the back door, and other
questions that Ehlers had already answered during the inter-
view when Huber was present. Ehlers stated that he had al-
ready answered these questions and would not answer them
again. Baumuller also interjected on several occasions that
these questions had been asked and answered. After one of
Baumuller’s objections, Esposito read to her Respondent’s
guidelines for the role of the union representative, as it had
previously done with Huber. Baumuller then asked ‘‘is this
why Billy Huber was asked to leave’’? Ehlers replied, ‘‘Yes,
it was.’’
At that point Schadewald informed Ehlers that they were
proceeding to the second part of the interview, which is a
written part, where he would be asked questions and the an-
swers would be recorded.
Ehlers and apparently Baumuller as well, believing that
this was a ‘‘separate’’ part of the interview, did not object
to the fact that Schadewald asked questions that had been
asked and answered previously. This portion of the interview
commenced at 12:21 p.m. and concluded at 1:28 p.m.
Questions were asked and answered about Ehlers move-
ments on June 15, when he arrived back at work, when he
left the garage, what he did when he got to the garage, who
else was in the garage, did he see anyone ransack the garage,
and other questions pertaining to the incident. A number of
Ehlers’ answers were still ‘‘I don’t know’’ or ‘‘I don’t re-
call,’’ but he answered all questions that were asked. No
questions were repeated during this portion of the interview.
At the end Ehlers read the statement, and made one correc-
tion. The statement originally read that Ehlers was ‘‘allowed
to confer with your union delegate.’’ This was changed at
Ehlers request to ‘‘confer with a union delegate.’’ Ehlers re-
fused to sign the statement.
The security representatives left the room. A few minutes
later Houghtalin came in and notified Ehlers that he was
being suspended for withholding evidence and not cooperat-
ing. Ehlers responded, ‘‘You’re wrong, this is wrong, this
whole thing is wrong.’’
Schadewald made the decision to terminate Ehlers’ inter-
view, order Huber to leave, and resume with another union
representative. Schadewald testified that he made such a de-
cision because Huber was being ‘‘disruptive’’ during the pre-
vious interview of Woods as well as during the interview of
292 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Ehlers. Schadewald admitted that Respondent had published
no guidelines as what conduct of a union representative is
considered ‘‘disruptive,’’ so as to justify his removal from
the interview.
Schadewald further testified as to what conduct of Huber
was in his view sufficiently disruptive to warrant the deci-
sion to terminate the interview and ask Huber to leave. The
first item mentioned by Schadewald was the fact that Re-
spondent had developed information that both Ehlers and
Woods were in a position to have had knowledge of who
was involved in the incident of June 15. However these em-
ployees were continually responding to questions with such
answers as they don’t know or didn’t remember. Schadewald
testified that he felt Huber was responsible for the employ-
ees’ lack of forthcoming answers, because he continually
made remarks throughout these interviews that questions had
already been asked and to ask a new question. This resulted
in the employees giving similar responses to questions, there-
by impeding Respondent’s efforts to obtain the facts.
Schadewald admitted further that in his view, it is disruptive
conduct for a union representative to advise an employee not
to answer a question that has been asked once before.
Schadewald also testified as to other conduct engaged in
by Huber, which he considered ‘‘disruptive.’’ The second
item mentioned was that Huber was speaking loudly during
the interviews. In this connection, Schadewald admitted that
Esposito was speaking loudly as well during the interviews,
but asserts that this was necessary in order to respond to
Huber’s loud talking. Thus Schadewald’s problem was that
Huber was ‘‘being loud first.’’ Additionally Schadewald as-
serts that he relied upon Huber’s actions of leaning over the
table, coming between himself and the interviewee, and
Huber’s propensity for interrupting before he could finish
asking a question. Schadewald also pointed to what in his
view was ‘‘just about the final thing,’’ when Huber accused
Respondent of bugging the room, and again made that accu-
sation in a loud manner.
Interviews were also conducted at Little Ferry by security
representatives Lance Nelson and Carmine Inteso. The first
employee interviewed was Ron Agresta. The union represent-
ative present was Bruce Kelly. The representatives informed
Kelly that he was ‘‘here as an observer.’’ Kelly replied that
he was there as Agresta’s representative, and some discus-
sion ensued on that subject. The interview then commenced,
and the security representatives began asking the same or
similar questions that they had asked before. Both Kelly and
Agresta protested and told the security representatives to
‘‘move on’’ and ask new questions. After these confronta-
tions, Agresta was made aware of his obligations to cooper-
ate, and the code of conduct was read to him. Agresta’s re-
sponses were recorded.
The security representatives then proposed going on to the
so called ‘‘written portion’’ of the interview. Kelly re-
sponded that this would be redundant since all the questions
and answers were already recorded. Kelly and Agresta stated
that Agresta would only answer new questions. The rep-
resentatives then called in Dan Fangaro, who informed
Agresta that he was being suspended for suspicion of with-
holding information during a security investigation, and sus-
picion of assaulting a supervisor.
The next employee interviewed was Warren McRea with
Kelly again serving as union representative. This time the se-
curity representatives did not use the format of two distinct
portions of the interviews, probably expecting Kelly to take
the same position that he had taken in Agresta’s interview,
that such a procedure would be redundant.
Questions were asked and answered, and a five-page
‘‘Voluntary Statement’’ was written by the security rep-
resentative. At the end McRea was asked to read over and
sign the document. He refused, as Kelly stated ‘‘we don’t
sign that, you have your notes, we have our notes.’’ Fangaro
entered shortly thereafter, and suspended McRea for ‘‘sus-
picion of withholding information during a security inves-
tigation.’’
A report prepared by Nelson and Inteso on these two inter-
views for Respondent’s files described Kelly’s behavior
therein as follows: (1) interruptive, (2) acted as counsel, (3)
numerous times answered for employee or told employee not
to answer, (4) stated employee would not answer any ques-
tion more than once, (5) treated interviews as adversarial in
nature, (6) Argumentative, loud and sarcastic, (7) attempted
to disrupt entire interview process, and (8) refused to allow
a recap of questions and answers for a written record.
Employees Lou Argenio and Dennis Collins were inter-
viewed by security representatives Larraine Vasilik and Bill
Minick at the Oradell Central office. Bob David served as
the union representative. Argenio was asked questions about
the incident of June 15 and he gave answers, which were
written down. The security representatives then sought to
move on to the ‘‘written portion’’ of the interview. David
advised Argenio not to give a written statement. David indi-
cated that all of the questions had already been answered and
that signed statements are not given. Thus no written state-
ment was taken.
When Collins was interviewed, the security representatives
started right in by taking a ‘‘so called’’ voluntary statement.
A five page statement was written out by the representatives,
based upon the questions asked and responses given by Col-
lins. Collins refused to sign the statement. There is no evi-
dence that any repetitious questions were asked at the inter-
views of either Collins or Argenio. The security representa-
tives report of David’s conduct indicates that he ‘‘acted in
an orderly manner . . . took notes and clarified some points.
He was not disruptive, and did not counsel or answer for the
subject.’’ Both Collins and Argenio were also suspended at
the close of their interviews.
My findings with respect to the various interviews conduct
on June 22 as set forth above is based on a synthesis of the
credible portions of the testimony of Huber, Ehlers, Kelly,
Esposito, and Schadewald, supplemented by documents and
statements prepared by security representatives which com-
prise Respondent’s ‘‘Security Report’’ of the investigation.
D. The Arrest of Huber on June 23
Since six splicers had been interviewed and suspended on
June 22, Woods and Huber decided to call a meeting of the
remaining splicers to explain what had happened, and to dis-
cuss with these employees what they should do in the event
that additional interviews were to be scheduled. Woods
called employees at home during the evening of June 22, and
notified them that a meeting would be held on June 23, out-
side the garage, at 7:45 a.m. Most of the splicers who were
not suspended, plus some of the technicians were present,
along with Woods, Ehlers, and Huber. Huber explained that
293NEW JERSEY BELL TELEPHONE CO.
5 Hoffman had received a call from Houghtalin in the late after-
noon on June 22, and was told that Huber had been disruptive dur-
ing some security interviews at Oradell, and had been removed from
the building and arrested by police.
six splicers had been interviewed by security representatives
and suspended on June 22. He urged the employees to stay
calm, be careful, and to contact Huber if there were any
problems. Huber also explained that there was a possibility
that the security representatives would interview additional
employees. In that event he urged them to request union rep-
resentation, cooperate in the investigation, but not to sign
anything.
The meeting ended about 7:55 a.m. when the employees
went into the garage to report for work. In the garage, super-
visors directed employees Thomas Pfeiffer, Timothy
Neithardt, Robert Testa, Brian Kaye, Dennis Spirto, Kenneth
Haberman and Glenn Berg to wait in the breakroom while
assignments were distributed to the other employees. Pfeiffer
and Neithardt approached Siegel outside the breakroom and
asked him where they were going that day. Siegel responded,
‘‘just wait here, you’re going for a ride.’’ Pfeiffer walked
away and became very upset. He began to rant and rave and
started throwing his pencil and notebook around.
About 8:10 a.m., John Dwyer, a splicer, left the garage
and informed Huber, Woods, and Ehlers that some employ-
ees were to be taken to some unknown destination, and that
Pfeiffer had become upset about the situation, was throwing
a notebook around the garage, and someone should try to
calm Pfeiffer. It was decided that Huber would enter the ga-
rage in order to calm down Pfeiffer. Huber walked in, picked
up Pfeiffer’s notebook from the top of the truck, and ap-
proached Pfeiffer. Pfeiffer told Huber that he was ‘‘pissed
off’’ because he was not involved in the situation, but he
was apparently going to be questioned. Huber replied that it
looks like Pfeiffer was going to be involved in interviews
like everyone else. Pfeiffer was very upset, but Huber calmed
him down and told him that Respondent is looking for him
to react, but that he should not get upset and provoke dis-
ciplinary action. He further told Pfeiffer that if he was inter-
viewed, to ask for union representation, answer questions
honestly but only once, do not sign anything and do not per-
mit the security representatives to tape record the interview.
Huber started to walk with Pfeiffer near the break room,
when he encountered Neithardt, Berg, Kaye, Spirito, and
Testa. Berg and Neithardt told Huber that they had been told
to remain on standby, and were waiting to be taken to an un-
disclosed location, apparently for an interview, and asked
what they should do? Additionally a few other splicers such
as Bernard Baudish, who had not been scheduled for an
interview that day were also standing in this group of em-
ployees.
Huber began to give a more detailed explanation of the
Weingarten process. He told them that he wasn’t certain, but
it looked like they were going to be interrogated by security.
He informed them to be sure to request union representation,
not to sign anything, to make sure nothing was recorded, and
not to answer any question more than once. He also ex-
plained the procedure that would be followed, i.e., a two-part
series of questions, and added that the union objected to the
second part of the interview.
Meanwhile, Siegel observed Huber speaking to employees,
but he did not know who Huber was at the time. Siegel went
into Hoffman’s office and asked who was it that was ad-
dressing the employees. Hoffman informed Siegel that it was
Billy Huber the General Delegate.5 Hoffman than said to
Siegel, ‘‘Let’s go find out why he’s here.’’
Hoffman and Siegel then approached Huber while he was
in the process of explaining to the employees their
‘‘Weingarten’’ rights. Hoffman asked Huber what he was
doing. He replied he was instructing members about their
Weingarten rights. Hoffman asked Huber if he had permis-
sion to be in the garage. Huber responded that he had been
in the garage many times before, and had never needed per-
mission. He asked why did he suddenly need permission
then. Hoffman answered that he was just doing what he was
told. Huber replied that he did not have permission, did not
need permission, and would leave the garage when he was
finished. Hoffman then told Huber that if he did not leave,
the police would be called. Huber told Hoffman that he can
‘‘go call the police and go shit in your hat,’’ when he was
finished he would leave the garage. Three or four minutes
later Huber concluded his remarks, and left the garage.
Meanwhile at 8:19 a.m. after Hoffman was finished speak-
ing with Huber, he called the police. He told them that there
was a union official on the premises without prior manage-
ment approval and he wanted a squad car to come down to
‘‘keep the peace and ask the person to please vacate the
premises.’’ Hoffman then called Houghtalin and informed
him that he had called the police to remove Huber and that
he intended to press charges.
The police arrived immediately, while Huber was already
outside the garage. Hoffman told the police officer that he
intended to press charges against Huber for trespassing.
Huber approached the police officers, showed his company
I.D. and union card, and said this was a labor problem not
involved with the police. Huber added that he had already
left the building. The police officer replied that Hoffman
would be going to the station to sign criminal trespassing
charges, and asked Huber if he would go willingly. Huber
said that he would and was driven in the police car to the
station. At the station Huber was there for an hour, as the
police took his fingerprints, and a ‘‘mug shot.’’ Hoffman ar-
rived and filed a complaint charging Huber with ‘‘defiant
trespassing.’’
My findings as detailed above with respect to the events
of June 23, is based on a synthesis of the credible testimony
of Huber, Woods, Ehlers, Neithardt, Hoffman and Siegel. In
fact the only significant credibility issue with respect to this
incident, is whether Siegel and Hoffman were told about or
aware of what Huber was discussing with employees when
they asked him to leave. I reject the testimony of Siegel and
Hoffman that they were unaware that Huber was advising the
employees of their ‘‘Weingarten’’ rights, and credit Huber as
indicated above that he so advised them. I note in this con-
nection that Hoffman admitted that before he spoke to
Huber, he told Siegel that he intended to find out ‘‘why he
[Huber] is here.’’ Thus I find it logical that since Hoffman
intended to ask Huber why he was at the garage, that he in
fact did so as testified to by Huber, and that Hoffman was
fully aware of what Huber was discussing with employees
when he ordered Huber to leave the premises.
294 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Extensive testimony was adduced with respect to past
practice at Respondent’s facilities, vis-a-vis the alleged re-
quirement for union representatives to obtain permission to
enter such facilities, and or to conduct union business while
there. General Counsel produced various present and current
union officials, such as Arthur Perry, George Cookson, Rob-
ert Johnson, Bruce Kelly, and Huber to testify on this sub-
ject. These witnesses contend that Respondent never had a
rule or policy which required union officials to obtain ad-
vance permission from Respondent’s officials before entering
one of its facilities. Indeed many of the officials of the
Union, including Huber were and are still employees of Re-
spondent while serving as union representatives, and still re-
tain their company I.D. cards.
Huber had worked for Respondent for 16 years, when he
became a general delegate for the Union in 1983. After be-
coming a delegate Huber performed some installation and re-
pair work for Respondent in 1983. From 1984, until his ter-
mination in 1987, he performed production work for Re-
spondent only for 1 day, in September 1986. However pursu-
ant to the terms of the collective-bargaining agreement,
Huber is paid by Respondent when he is engaged in ‘‘joint
time,’’ which refers to meetings held or on telephone con-
versations with officials of Respondent. Since Huber became
a general delegate, approximately 65 percent of his time has
been paid by Respondent pursuant to the above collective-
bargaining provision.
The union officials also deny the existence of any rule or
policy of Respondent that requires union representatives to
obtain permission from Respondent’s supervisors before
speaking to employees on the premises regardless of the sub-
ject matter of the discussion or the time of day. However,
the union officials essentially concede, that as a matter of
‘‘common sense,’’ or ‘‘common courtesy,’’ when a union
representative wishes to speak to an employee about union
business, while that employee was working, they generally
obtain permission from a supervisor, if the discussion was
likely to exceed a ‘‘reasonable’’ amount of time. The amount
of time spent with an employee before requesting permission
would vary according to the situation, with some union offi-
cials using a guideline of 6 minutes. Some of these witnesses
and most particularly Huber contend that there were some
occasions when they would not obtain permission for any
such discussions, such as an emergency, and that some su-
pervisors were stricter than others with respect to requiring
permission to speak with employees in general.
Respondent furnished testimony from Siegel, Hoffman,
Houghtalin, Kenneth Teneza, Anton Kurelja, Alfred Murphy,
John Donnelly, and Robert Voss. These officials testified es-
sentially that Respondent had no rule requiring that union of-
ficials obtain permission to conduct union business prior to
entering Respondent’s facilities. However they assert that Re-
spondent has consistently maintained and enforced a policy
that union officials must obtain permission from supervisors
in order to conduct union business, where such union busi-
ness involves speaking to employees who were ‘‘on the
job,’’ or ‘‘working’’ or ‘‘on the clock.’’ In clarification of
this ‘‘rule or policy,’’ they contend that such permission is
not required where the officials wishes to conduct union
business during breaks, or lunch hour or before work. Simi-
larly if the union officials merely intends to place union lit-
erature on the bulletin board, permission is not required,
since employees at work would not be impacted. Thus the
key factor in Respondent’s view, is whether the union offi-
cials conduct ‘‘disrupts’’ the work of employees, since
‘‘work time is for work.’’
Another aspect of Respondent’s ‘‘rule’’ or ‘‘policy,’’ pro-
duced conflicting testimony from its witnesses. While on its
face the rule concededly prohibits the conducting of ‘‘union
business,’’ Houghtalin testified that the rule does not apply
only to the conduct of ‘‘union business,’’ but to the conduct-
ing of any ‘‘personal’’ business, which takes employees ‘‘off
the job.’’ However a number of the other of Respondent’s
supervisors, who testified had a different view of the rule.
Thus Hoffman who I would note was one of the supervisors
directly involved with Huber on June 23, testified that the
rule only applies to ‘‘union business.’’ Thus he asserts that
if an union official were to speak to an employee who is on
the job about a nonunion related matter such as baseball or
just to say hello, permission would not be required. How-
ever, if the union official in addition to saying hello, informs
him about a union meeting, even though the time spent away
from work is the same as the discussion about baseball or
just saying hello, then he must get permission to speak to the
employee.
Kurelja testified similarly, when he was asked about a sit-
uation where a union official approached an employee on the
job, and spending the same amount of time, says to the em-
ployee ‘‘Hi’’ or ‘‘come to the union meeting tonight.’’ Ac-
cording to Kurelja the union official would require permis-
sion from a supervisor if he were going to make the latter
comment to the employee, but not the former.
Additionally, Voss was asked if he ever had occasion to
mention Respondent’s alleged ‘‘rule’’ to a union delegate.
His response was ‘‘I might have challenged him if I thought
he was talking union business.’’
Finally, the conduct of Hoffman and Siegel on June 23
supports this interpretation of the rule. Thus when they no-
ticed that Huber was speaking to employees after 8 a.m.,
Hoffman said to Siegel, ‘‘Let’s go find out why he’s here.’’
They then approached Huber and asked him what he was
doing? This conduct suggests that it was significant whether
or not Huber was talking to employees about union business,
since otherwise it would not have been necessary or essential
to ask him why he was there or what he was doing.
Finally, it is not disputed that Respondent has not pub-
lished in writing any rule or policy with respect to the need
to obtain permission by union officials to either enter its fa-
cilities to discuss union business, or to speak to employees
about union business or any other matters. Moreover, the col-
lective-bargaining agreement between the parties contains no
provisions dealing with these matters.
E. Interviews Conducted on June 23
After Huber was released from the police station, he and
Cookson discussed the situation that employees were being
interviewed at Oradell and River Edge. They decided that
Cookson would go to Oradell and Huber to River Edge.
Cookson suggested that Huber go to River Edge, because the
representative sitting in on the interview was an inexperi-
enced appointed steward, and that he should sit in on the
interview.
Cookson arrived at Oradell, and entered the conference
room where two security representatives were interviewing
295NEW JERSEY BELL TELEPHONE CO.
6 The Union must pay for the wages of union representatives when
they attend investigatory interviews.
7 All three trespassing charges filed against Huber were subse-
quently consolidated into one case, which the prosecutor has agreed
to hold in abeyance pending the resolution of the unfair labor prac-
tice charges herein.
8 In this connection, Houghtalin candidly conceded that he would
have excluded Huber from serving as union representative even if
Neithardt had made a specific request for Huber’s presence.
employee Testa with Baumuller serving as union representa-
tive. After identifying himself, Cookson asked if he could
speak to Baumuller. The representatives (Lance Nelson and
Carmine Intesa) agreed and Cookson conferred with
Baumuller and Testa. Cookson spoke to Baumuller and Testa
to make sure that Baumuller and Testa were comfortable
with the situation. If he was not satisfied that this was so,
it was Cookson’s intention to replace Baumuller as the union
representative. However Cookson concluded that Baumuller
seemed ‘‘sure of the situation,’’ and Testa was comfortable
with her representing him, so Cookson did not attempt to re-
place her.
The interview proceeded without incident, with the secu-
rity representatives preparing a six-page ‘‘Voluntary State-
ment,’’ which Testa would not sign. The report prepared by
the security representatives of this interview, indicated that
Baumuller ‘‘displayed a business like attitude,’’ acted as
counsel on a number of occasions, refused to allow
interviewee to answer questions more than once, interrupted
and counseled interviewee before interviewee answered most
questions,’’ and was ‘‘argumentative but in a civil manner.’’
About 9:30 a.m. security representatives Minick and
Vasilik began to interview Neithardt at River Edge. They in-
formed him that they wished to talk with him about an inci-
dent at the Bergenfield garage. Neithardt then asked for
union representation. According to Neithardt he would have
referred to have Huber as his representative, since Huber was
the general delegate and an experienced union official. How-
ever Neithardt testified that he did not ask for Huber because
he had seen Huber being arrested about an hour earlier, and
he didn’t believe that Huber would be available. He didn’t
ask for a delay in the interview, because he claims that he
didn’t believe that Respondent would hold up the interview
until Huber arrived.
Minick then advised Siegel that Neithardt had requested
union representation. Siegel notified Houghtalin, who in turn
arranged for David to be transported by his Supervisor Al
Draper from Emerson to River Edge.
About 9:45 a.m. Huber arrived at the River Edge office at
the same time that David and Draper pulled into the parking
lot. Siegel observed them both arriving together, and suspect-
ing that Huber was going to ask to be the union representa-
tive, immediately called Houghtalin for advice.
Houghtalin after being informed of the situation, asked if
Neithardt had specifically requested Huber’s presence. Siegel
replied no, that Neithardt had merely requested union rep-
resentation. Houghtalin informed Siegel that David had been
summoned to handle the investigation and Huber would not
be allowed to intervene.
Meanwhile, Huber encountered Draper and David as they
were entering the facility, and told Draper that he would re-
place David as the union representative. Huber explained to
Draper that he was already being paid by the Union, so it
would be more productive to send David back to work, and
to avoid the Union incurring the expense of paying for Da-
vid’s time.6 Huber added that he was more experienced than
David in these matters. Draper could not make a decision on
Huber’s request, so he went to speak with Siegel. Siegel in-
formed both Draper and the security representatives that
David, and not Huber would be the union representative at
the investigatory interview.
Siegel and Draper then went downstairs to the lobby
where Huber and David were standing. Siegel asked Huber
what he was doing in the building, since he did not have per-
mission to be there. Huber replied that he did not need per-
mission to be there, and that he was present because security
representatives were about to interview one of his members,
and he intended to serve as the representative. Siegel re-
sponded that Huber’s presence at the investigation was not
required, since Respondent was supplying David who was al-
ready there as the union representative. Huber argued that
David was on ‘‘his payroll,’’ and he Huber had the right to
choose who the union representative would be. Huber added
that he was more experienced than David, and he did not be-
lieve that Respondent had the right to pick who the union
representative would be. Siegel insisted that David would be
the union representative, and since Huber therefore had no
right to be there, asked Huber to leave. Huber continued to
insist on his right to replace David as union representative,
and Siegel threatened to call the police to remove Huber if
he did not leave. Huber refused to leave, the police were
called and arrived shortly thereafter. Huber was escorted
from the premises by the police and taken to the River Edge
police station. There Draper signed a complaint accusing
Huber of ‘‘defiant trespass.’’7
Houghtalin testified that he made the decision to exclude
Huber from serving as union representative on that day. He
contends that his decision was based upon the fact that
Huber was not asked for specifically by the employee, and
more importantly because of the ‘‘volatility’’ of the situa-
tion.8 More specifically Houghtalin asserts that since Huber
had refused to leave the investigatory interview on June 22,
and refused to leave the garage on June 23, after being told
to do so by company officials, he did not want to risk an-
other such confrontation by allowing him to serve as union
representative for Neithardt.
At 10:05 a.m. the interview with Neithardt continued, in
the presence of David. David was reminded of the rules gov-
erning the behavior of union representatives, and Neithardt of
his obligation to cooperate. Questions were asked about the
Bergenfield incident and Neithardt responded. David inter-
rupted a number of times, in a normal tone of voice to state
that the same questions should be asked only once and that
Neithardt had already answered the question.
Neithardt refused to sign the written statement taken by
the security representatives and the interview was completed
by 10:45 a.m. Cookson arrived at River Edge at about the
time Neithardt’s interview was concluding. He identified
himself and asked the security representatives for permission
to speak to his ‘‘two people’’ (Neithardt and Pfeiffer). The
security representatives agreed. Cookson met with Neithardt,
Pfeiffer as well as David in the breakroom. Pfeiffer was
nervous and upset, and didn’t want to be there. Cookson
calmed him down, and convinced him that he should go in
296 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 The record does not disclose why David rather than union dele-
gate Kaufman was selected to serve as union representative for
Haberman.
and participate in the interview. Cookson also spoke to
David and assured himself that David was comfortable and
capable of handling the situation. According to Cookson, if
he was not so convinced, he would have insisted that he re-
place David in the interview. Cookson then left and the inter-
view with Pfeiffer proceeded.
During the interview, which began at 11 a.m., David inter-
rupted a line of questioning on several occasions stating that
Pfeiffer had already answered a particular question and was
not required to do so a second time. The interview was con-
cluded at 11:55 a.m. Pfeiffer did not sign any statement.
Employees Glen Berg and Dennis Spirito were interviewed
by Schadewald and Esposito on June 23, with Charles Kauf-
man union delegate acting as union representative. Kaufman
began the Berg interview by stating that due to the fact that
everyone who cooperated by answering questions the day be-
fore, were suspended indefinitely, ‘‘we feel we will not an-
swer any more questions.’’ Schadewald and Esposito then
explained Berg’s obligation to cooperate, leaving himself
open to discipline if he does not.
After a caucus between Kaufman and Berg, and some ad-
ditional discussion, Berg answered questions about the inci-
dent of June 15 at Bergenfield. A ‘‘Voluntary Statement,’’
of five pages was taken by the security representatives. Berg
and Kaufman read the statement, but Berg refused to sign.
Spirito was asked by the security representatives if he had
been instructed by anyone that morning on how to answer
any questions during the interviews. Spirito replied that he
was not, and added that Huber at a meeting of employees
had mentioned to employees to ‘‘be careful because security
is around.’’
The interview proceeded and Spirito answered the ques-
tions asked of him. An eight-page ‘‘Voluntary Statement’’
was taken. Spirito was asked to read it over, and he gave it
to Kaufman to read as well. The statement was not signed.
Schadewald’s report of Kaufman’s conduct in Respond-
ent’s security report, concluded that Kaufman during both
interviews (Berg and Spirito) observed, witnessed, did not
take notes, advised his constituents, interrupted to clarify
facts and aided in the investigation, at times.
The record does not reflect whether the security represent-
atives asked any ‘‘repetitious’’ questions during these inter-
views, nor whether Kaufman made any objections to ques-
tions being asked more than once.
Employee Kenneth Haberman was also interviewed by
Schadewald and Esposito on June 23, with David serving as
union representative.9 During this interview, Haberman ini-
tially began answering that he did not remember to many
questions, including the names of the employees in the ga-
rage. In fact at one point Esposito asked Haberman if he had
amnesia. After a recess, Haberman’s memory improved
slightly with respect to the above question, and the interview
continued. A six-page written statement was taken, which
Haberman refused to sign.
The final interview conducted on June 23 was employee
Brian Kaye by security representatives William Minick and
Lorraine Vasilik, with Baumuller serving as union represent-
ative. A six-page statement was taken from Kaye which was
not signed.
Once again the record does not disclose whether during
these interviews (Kaye and Haberman) the security represent-
atives asked any repetitious questions, or whether the union
representatives involved (David or Baumuller) objected to
questions being asked a second time.
F. Subsequent Interviews
On June 24 employees Donald Cielsa, Bernard Baudish,
and James Grant were interviewed at Oradell. Cielsa was
interviewed by Vasilik and Minick, with Baumuller acting as
union representative. A voluntary unsigned statement was
taken with respect to Cielsa’s responses. There is no indica-
tion in the record that any ‘‘repetitious’’ questions were
asked or objected to during the interview.
Baudish was interviewed by Schadewald and Esposito
with Gerald Heytink a delegate serving as union representa-
tive. A four page ‘‘voluntary statement’’ was taken from
Baudish, but was not signed. During the interview Baudish
was asked if he had been coached on how to answer ques-
tions. The record discloses that Heytink interrupted a number
of questions, but does not disclose what types of questions
they were or whether they were repetitious. According to
Schadewald’s report of the interview, Heytink ‘‘became dis-
ruptive because of too many interruptions and was advised
of his role on one occasion.’’
Grant’s interview was conducted by Inteso and Nelson,
with Phill Toss Union delegate as union representative. An
unsigned written statement was taken from Grant. Toss’ con-
duct as described in the security report indicates that he re-
fused to allow Grant to answer questions more than once,
was argumentative but in a civil manner, and interrupted and
counseled Grant before Grant answered certain questions.
On June 25 security representatives Schadewald and Kathy
Wood interviewed employees James McGuire, Bruce
Johnsen, and Robert Richardson with Baumuller serving as
union representative at each interview. During the interview
with Richardson Baumuller asked that Schadewald slow
down his questioning, since she was having difficulty writing
everything down. Schadewald replied that Baumuller would
have to keep up as best she could. Schadewald suggested
that the interview be tape recorded, and she would be pro-
vided a transcript. Baumuller responded that was not accept-
able, and requested a recess to call Huber. Schadewald
agreed. When Baumuller returned, Schadewald read Re-
spondent’s policy dealing with the role of the union rep-
resentative. All three interviews resulted in a written state-
ment which was reviewed by Baumuller and the employee,
but not signed. The record once more does not disclose
whether any ‘‘repetitious’’ questions were asked by the secu-
rity representatives during these interviews, nor whether
Baumuller objected to any such questions.
Employee Brendan Leen was interviewed by security rep-
resentatives Schadewald and Minick with Baumuller acting
as union representative. The security representatives started
to question Leen about a dispute that he had on June 15 at
a jobsite, prior to returning to the garage. There was a dis-
pute about whether such questioning was permissible because
a grievance may have been already filed about that incident.
After a number of recesses and telephone calls, the security
representatives agreed not to ask about such matters. They
297NEW JERSEY BELL TELEPHONE CO.
10 This statement surprised both Woods and Huber since neither of
them had in fact asked for permission to enter the premises. They
surmised that Respondent had reconsidered Woods’ suspension and
were putting him back on the payroll.
11 The employees suspended were Woods, Argenio, Agresto,
Ehlers, Collins, McRae, Spirito, Grant McGuire, Mikowski, and
Richardson.
then proceeded to ask questions about the events at the Ber-
genfield garage on June 15. The questions became repeti-
tious, with both Leen and Baumuller objecting to questions
being asked more than once. At times when Baumuller ob-
jected to a question being asked more than once, the security
representatives would become ‘‘very very annoyed,’’ with
Schadewald on one occasion raising his voice to Baumuller.
Leen answered the questions that the security representatives
asked once, and those answers were recorded.
Schadewald then attempted to summarize and to com-
mence the written, ‘‘voluntary statement.’’ Schadewald asked
what time Leen had arrived back at the garage. Leen based
upon Baumuller’s advice refused to answer that question, and
stated that he would not answer any question that had al-
ready been asked. Schadewald persisted, explaining Leen’s
obligation to cooperate, and possible consequences if he did
not, and again asked what time Leen arrived back at the ga-
rage. Leen once more responded that he had already an-
swered that question. Schadewald then accused Leen of im-
peding the investigation by not answering questions that had
been answered during the oral portion of the interview, and
asserted that Respondent has a right to formalize the oral
interview into a written statement. Schadewald again asked
what time Leen arrived back at the garage, and received a
similar reply that Leen had answered that question once.
After reminding Leen of the N.J. Bell Code of Conduct,
Schadewald asked him to read a five-page ‘‘Voluntary State-
ment,’’ which consisted essentially of Schadewald asking
him three times what time he arrived back at the garage and
Leen’s refusal to answer because he already done so, plus
Schadewald’s attempts to persuade him to respond. Leen re-
fused to read or sign this document. The interview was ter-
minated, and Leen was informed that he would receive a let-
ter of discipline for his ‘‘non cooperative behavior’’ during
the interview.
On June 29, Huber and Woods met with some of the em-
ployees who had not been suspended, including some who
had just returned from vacation, outside of the Bergenfield
garage before work began. They explained to the employees
that it appeared that the security representatives were going
to interview all of the splicers and perhaps even some of the
technicians. They reminded the employees that if they were
interviewed to request union representation, and ask for ei-
ther Huber or Woods to serve as their representative.
After the meeting ended, the employees went into work.
A splicer came out a few minutes later, and related that Re-
spondent was taking employees Rudy Miller and Rudy
Mikowski to an undisclosed location. Huber and Woods de-
cided to follow the car driven by Steve Mohey, assistant
manager, which contained the two employees, to the district
office in Oradell. Huber and Woods entered the parking lot,
got out of the car and walked toward the back door. Mohey
informed them that they did not have permission to be in the
building. They responded that they were here to represent
these people. Mohey instructed them to wait in the vestibule
while he checks things out. Houghtalin arrived and told
Mohey that Woods and Huber did in fact have permission
to be on the premises.10
As Huber and Woods walked towards the conference room
where they assumed that the interviews of the two splicers
were to be conducted, Houghtalin informed them that Woods
was now back on the payroll and Respondent wished to re-
interview Woods. Woods requested Huber to serve as his
union representative, and Houghtalin agreed. Houghtalin tes-
tified that he permitted Huber to act as the union representa-
tive for Woods, because the situation had somewhat ‘‘de-
fused’’ from June 22 and 23, and he did not anticipate any
problems with Huber at that point.
Schadewald and Minick conducted the reinterview of
Woods. After Huber and Woods conferred, Huber asserted
that he is advising Woods not to answer any questions more
than once. The security representatives indicated that they
were not going to conduct the oral portion and would go
right to a written statement. The first few questions dealt
with Woods’ alleged conversation with Voss on June 15,
which had been asked and answered in his prior interview.
Woods, supported by Huber refused to answer these ques-
tions, stating that he had ‘‘answered that question at the last
interview.’’ Schadewald replied that Woods was still obliged
to cooperate and questioning continued.
Schadewald then asked Woods about a conversation with
Voss on June 16 in which he allegedly apologized for what
was done to Siegel’s office. Since this was a new area of in-
quiry, Woods responded and furnished his version of the
‘‘apology’’ to Voss, and his reasons for doing so.
A three-page ‘‘Voluntary Statement’’ covering these mat-
ters was taken. Woods refused to either read or sign the
statement. After the interview, Houghtalin entered and in-
formed Woods that he was again suspended indefinitely.
Later on throughout the day of June 29, Schadewald and
Minick interviewed employees Miller and Mikowski and re-
interviewed Richardson with Woods serving as union rep-
resentative. During all three interviews Woods advised em-
ployees not to answer questions that had been answered be-
fore. Mikowski and Richardson followed Woods’ advice but
Miller did not, and answered all questions even though a
number of them had already been answered.
At one point in Mikowski’s interview he was asked who
specifically had told him not to answer questions a second
time. After a recess, Mikowski replied that Woods had so in-
structed him on the advice of union counsel.
The final interview was conducted on July 7 with em-
ployee Robert McGrath being questioned by Schadewald and
Mury, a supervisor, with Baumuller serving as union rep-
resentative. A five page unsigned statement was taken. The
record does not disclose whether any ‘‘repetitious’’ questions
were either asked or objected to by Baumuller.
A grand total of 23 employees were interviewed during the
course of the investigation. Respondent suspended eleven of
these employees for 10 days for refusing to cooperate in the
investigation.11
298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 No employees were working at the facility on that day.
G. The Discharge of Huber
On June 29, Huber accompanied by Woods was sum-
moned into the office of Robert Scairpon. Houghtalin was
also present. Scairpon stated, ‘‘Mr. Huber, I would like to
discuss you entering company premises last week. As you
know, you must obtain permission prior to entering company
premises. Do you have anything to say about this?’’
Huber after clarifying what Scairpon was referring to (the
Oradell, Bergenfield, and River Edge incidents), Huber re-
sponded that he ‘‘was at those locations in my capacity as
a union official. I have been advised by counsel concerning
this.’’
Scairpon then read a statement indicating that Huber was
being terminated for ‘‘repeatedly being on company premises
without permission, which is a violation of a requirement
with which you are familiar, and insubordination for refusal
to leave company premises when directed to do so by man-
agement.’’
There was some discussion of Huber’s past disciplinary
record, and Huber turned in his I.D. card and left. The past
disciplinary record referred to above, consists of a number of
prior incidents involving Huber and various company offi-
cials.
On Saturday, November 5, 1983, Huber and another dele-
gate entered Respondent’s facility at 1500 Teaneck Road in
Teaneck. Huber had a grievance meeting scheduled the fol-
lowing Monday concerning complaints about asbestos, dust
and other hazardous conditions at that site. Thus he entered
the facility on November 5,12 with a camera in order to take
pictures in connection with the grievance. Huber took some
pictures on the first floor and walked to the second floor. Su-
pervisor Ken Teneza approached the union officials and ob-
served the camera around Huber’s neck. After seeing their
I.D. cards, Teneza asked Huber what he was doing. Huber
replied that he was there to take pictures. Teneza ordered
Huber to leave, asserting that he was not wearing protective
gear. Huber refused to leave, and challenged Teneza to call
the police or throw him out bodily. Teneza then called his
superior, who told Teneza to order Huber out of the building
and threaten him with discipline for insubordination. Teneza
followed these instructions, as Huber was leaving anyway.
After reviewing Teneza’s report of the incident District
Manager Dan McMullen and J. Backman of labor relations
concluded that no disciplinary action was appropriate at the
time. However, McMullen decided that he would review
with Union President McLaughlin and Huber the proper pro-
cedures for entering a company location. McMullen on No-
vember 18 spoke to McLaughlin, and informed him that
Huber had been insubordinate and gained unauthorized en-
trance into the Teaneck Road facility. He suggested that
McLaughlin review proper procedures with Huber.
On December 5, McMullen spoke to Huber. McMullen
told Huber that he needed prior permission to enter company
premises. Huber claimed that he did not agree that he needed
such permission. McMullen advised Huber that this was Re-
spondent’s rule and although he personally had no problem
with Huber’s actions, that Huber would probably suffer some
disciplinary action if any future such incidents occur.
On April 11, 1984, a joint management union discussion
was held. Present were Huber, McLaughlin, George Via, Re-
spondent’s division manager, and Murphy. During the course
of this discussion, various problems were mentioned includ-
ing a reiteration of Respondent’s position that union officials
must obtain prior approval from management in order to
conduct union business on Respondent’s property. Both
Huber and McLaughlin expressed disagreement with this po-
sition and no agreement was reached.
On April 16, 1984, Huber entered Respondent’s facility at
Teaneck Road to distribute some union literature to employ-
ees who were working at the time. On the first floor, he in-
formed Supervisor Joe Dwyer that he intended to distribute
the literature to the employees in the building. Dwyer made
no objection. However when Huber went upstairs to the sec-
ond floor to distribute the literature, he was confronted by
supervisor Anton Kurelja, who was in charge of the second
floor. He refused to permit Huber to distribute the literature
to the employees under his Supervision and asked Huber to
leave, since he did not have permission. Huber insisted that
he had received permission from Dwyer. Kurelja responded
that he didn’t care, that he was in charge of this floor and
he didn’t want Huber disrupting the work force. Huber re-
fused to leave and continued to distribute the literature to the
employees until he finished. Kurelja reported the incident to
his superior, and by the time he completed the call, Huber
had left the premises.
On April 20, 1984, a written reprimand was issued to
Huber. The letter refers to his ‘‘insubordinate conduct’’ on
April 16 at Teaneck Road, wherein Huber ‘‘entered the . . .
building . . . without arranging prior approval from Manage-
ment.’’ The letter goes on to conclude that ‘‘these insubordi-
nate actions of entering without approval and distributing
contrary to Management direction are very serious infrac-
tions.’’
The letter also made reference to the prior instances de-
scribed above; i.e., the April 1984 discussion with Via and
McLaughlin wherein Huber was told ‘‘it was unacceptable
for you to visit or walk around company buildings at will’’;
and the discussion with McMullen in December 1983 where
Huber was informed he would be disciplined if he ‘‘at-
tempted to visit company buildings without prior approval.’’
Finally, the letter stated that Huber was reprimanded and
threatened more serious discipline if such conduct continues.
This reprimand was grieved, with the Union taking the po-
sition that the reprimand was not proper. The Union did not
file for arbitration of this action, since arbitration is not
available to protest a letter of reprimand under the parties
collective-bargaining agreement.
On September 30, 1985, Huber entered Respondent’s facil-
ity in Emerson, in order to pick up his paycheck. After pick-
ing up his check, he began talking with a group of employ-
ees about an overtime problem. John Donnelly, assistant
manager of that facility, approached the group and asked if
they were talking about union business? Huber replied,
‘‘Does it matter?’’ Donnelly responded, ‘‘Yes it does.’’
Huber then said that the group would break up and he would
walk with them as they were getting ready.
Donnelly, feeling that he had dispersed the group, went
back to his office. Five or six minutes later Donnelly ob-
served Huber talking to three employees. At this time Don-
nelly directed his remarks to the employees, telling them to
get to work or they would be on ‘‘union time.’’ Huber inter-
jected, ‘‘fine, then they are on union time.’’ Donnelly, realiz-
299NEW JERSEY BELL TELEPHONE CO.
13 Perry did testify, however, that when he would enter Respond-
ent’s premises to speak to an employee on the job, he would ask
permission from a supervisor to do so.
ing that Huber had no prior approval, rescinded his prior re-
marks about the men being on union time and told them to
get on with their workload. Huber speaking in a loud voice
said to Donnelly, ‘‘You can take that rescind and shove it
up your ass. The men are on union time now. Get the fuck
out of here.’’
Subsequently, as a result of this incident Huber was sus-
pended for 10 days. The reasons given by Respondent for the
suspension were conducting union business on Respondent’s
property without prior approval, abusive language, disrupting
the work force, undermining supervisory authority, and in-
subordination. This suspension was grieved by the Union. An
arbitration hearing was held on the matter and a decision is
pending.
On December 6, 1985, the Union filed a charge with the
Region in Case 22–CA–14164, alleging that Huber’s suspen-
sion was violative of Section 8(a)(1) and (3) of the Act. On
January 23, 1986, the Region issued a ‘‘Collyer’’ letter de-
ferring further processing of the charge to the grievance arbi-
tration procedure in the parties collective-bargaining agree-
ment.
In 1976, D. Cifrodelli, an employee and delegate was
given a letter of reprimand for conducting union business on
company premises without prior approval. In the minutes of
a grievance meeting held with respect to this issue, A.
Trenkamp, on behalf of Respondent set forth its position on
the subject. He asserted ‘‘When the delegate . . . wants to
conduct union business on company premises, the Company
should be made aware of this. He does not have any right
to conduct union business on company premises . . . . This
is not to say that he cannot be on union business on com-
pany premises, but he should have prior approval by Man-
agement.’’ Trenkamp pointed out that Cifrodelli had been
warned four previous times by the District Manager that his
presence on company premises without arrangement would
not be tolerated. He again appeared at this location without
advance authorization in time, and the letter of reprimand en-
sued.
Perry on behalf of the Union objected to Trenkamp’s posi-
tion. He disputed that this was a company policy and argued
that it had never been discussed before with the Union. Perry
added that the contract contains no such requirement, and
asked Trenkamp to show what rule is violated when a union
representative appears on company premises without prior
approval. Perry’s position was that the union representative
must have access to the people he represents.
Subsequently, after a phone call between Trenkamp and
Perry, the grievance was settled as follows:
Mr. Trenkamp advised Mr. Perry that he would agree
to remove this letter with the understanding that in the
future the Delegate, as a matter of common courtesy
will arrange with Management in advance each time the
Delegate finds it necessary to conduct union business
on company premises. Mr. Perry said he had no prob-
lem with this understanding either and indicated that
what the Company was asking was a common sense re-
quest.
Perry testified on behalf of General Counsel, and asserted
that prior to the Cifrodelli grievance, Respondent had never
asserted a requirement that union representatives obtain per-
mission prior to entering a company building. Since there
only appeared to be a problem with Cifrodelli in this area,
Perry contends that he agreed to the settlement, which in his
view applied only to Cifrodelli, and not to other union offi-
cials.13
Robert Johnson, was the union president from 1985–1986,
and vice president from 1975 to 1985. He testified that his
understanding of the Cifrodelli grievance settlement was that
in the future if a union official goes to a company location
to conduct union business, as a matter of common courtesy
he would inform the supervisor, although such notification
need not be prior to his entering the premises. While Johnson
also insisted that the settlement applied only to Cifrodelli, he
agreed that there was an understanding between the parties,
and that all ‘‘delegates from that point on had to operate
under that same understanding.’’
Houghtalin also testified about his understanding of the
Cifrodelli grievance. He contends that he was informed about
it by his superiors at the time. Houghtalin asserts that he was
told that the agreement between the parties reflected that
‘‘delegates . . . could enter company premises for various
reasons with permission from management’’ and that the del-
egates ‘‘would just call local management and ask permis-
sion to enter the premises.’’
In connection with the Cifrodelli grievance, Charging
Party refers to Section 7 of the collective-bargaining agree-
ment which sets forth inter alia that ‘‘settlements of griev-
ances shall not constitute a precedent for settlement of other
grievances. A settlement arrived at in the course of the griev-
ance procedure shall be limited to the specific occurrence out
of which the grievance arose and to the particular employee
or employees for whom the grievance is presented.’’
According to Huber, he was unaware of any company rule
about obtaining permission until the 1983 asbestos incident.
He admits however that his own policy had been ‘‘as a mat-
ter of common courtesy,’’ when he enters a building to speak
to employees, to tell a supervisor what he intends to do.
However he further asserts that on numerous other occasions
he would enter a building and speak to employees without
obtaining permission, and no one would bother him. His only
notification about the rule came according to Huber, was
when he was so informed by the various officials of Re-
spondent during the incidents described above relating to his
prior disciplinary proceedings. After his suspension, Huber
further contends that from time to time certain supervisors,
but not all, would see him speaking to employees on the job.
He asserts that these supervisors would ask Huber if he had
permission to speak to employees. He would respond no, and
the supervisors would then remind him that he was supposed
to have permission since there was a pending suspension in
arbitration about this issue. However Huber further claims
that the supervisors took no further action and allowed him
to continue his discussions with employees.
The decision to terminate Huber was made by Scairpon,
in consultation with Houghtalin and Livelli. According to
Houghtalin, Huber was discharged based upon his past
record of prior disciplinary actions, plus his actions in not
leaving the premises when requested to do so on June 22 and
300 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 I note that the complaint does not allege nor does General
Counsel contend that Respondent’s threat directly to Huber that he
would be disciplined for his conduct at the interviews was unlawful.
15 NLRB v. J. Weingarten Inc., 420 U.S. 251 (1975).
16 Since the complaint does not allege such a violation, and the
General Counsel made no such contention at the hearing, I do not
deem it appropriate to make such a finding herein.
17 Whether Huber’s conduct can be so construed herein will be
discussed more full below.
23. Houghtalin was insistent that Huber’s conduct at Woods’
and Ehlers’ interview on June 22 had no bearing on Re-
spondent’s decision to terminate him. Houghtalin conceded
however that Huber’s conduct at these interviews did come
up during the discussion between Respondent’s officials of
whether to discharge him, but he didn’t recall what specifi-
cally was said about it.
Houghtalin admitted that on June 22, he had a conversa-
tion with Schadewald, during which Schadewald explained to
Houghtalin what conduct Huber had engaged in during the
interviews that led Schadewald to conclude that Huber was
being ‘‘disruptive.’’ Schadewald informed Houghtalin that
Huber was constantly interrupting the questions, stating that
the question already had been answered. Schadewald also
told Houghtalin that he felt the employees were being eva-
sive, while Huber was present and noted that after Baumuller
replaced Huber, Ehlers became more responsive. Schadewald
attributed this change to the fact that Baumuller was not like
Huber ‘‘confrontational.’’ Houghtalin a day or so later, re-
ported to Scairpon what the security representatives had in-
formed him about Huber’s conduct during the interviews on
June 22.
III. ANALYSIS
A. The Threat to Discharge Ehlers
As I have detailed above, Huber acted as the union rep-
resentative for employees Woods and Ehlers, during the
course of their investigatory interviews on June 22. It is clear
that the security representatives became dissatisfied with
Huber’s conduct during the course of these interviews, be-
lieving that he was ‘‘frustrating’’ the security representatives
in their efforts to ascertain information from the employees.
There were several confrontations during these interviews be-
tween Huber and the security representatives about Huber’s
conduct and his proper role as construed by Respondent. On
a number of occasions Huber was told by the security rep-
resentatives that if he continued to ‘‘frustrate’’ their efforts
by his conduct, that he could be subject to discipline.
Finally, towards the close of Ehlers’ interview, after Huber
once again objected to a ‘‘repetitious’’ question, a security
representative told Ehlers that if Huber continued to inter-
rupt, that he would be discharged.
It is alleged in the complaint, and contended by the Gen-
eral Counsel and the Charging Party that this remark by Re-
spondent’s security representative constitutes a threat in vio-
lation of Section 8(a)(1) of the Act.
Respondent argues that since Ehlers was being uncoopera-
tive at the interview, by failing to answer questions that he
should have been able to respond to, it was within its right
to threaten to discipline him for such conduct. Service Tech-
nology Corp., 196 NLRB 845, 847 (1972). Cf. Cook Paint
& Varnish Co., 246 NLRB 646 (1979). Similarly, it contends
that it is not unlawful to threaten to discipline a union rep-
resentative who engages in ‘‘disruptive’’ conduct at such an
interview, and that Huber was so engaged herein.14 Accord-
ingly Respondent argues that Huber’s ‘‘disruptive’’ conduct
during the course of the interview, forfeits whatever protec-
tion that the Act imposes based upon Weingarten.15 Thus its
threat to Ehlers is therefore not unlawful. I cannot agree with
Respondent’s analysis.
It was recognized in Weingarten, supra, by the Supreme
Court that the action of an employee in seeking and insisting
upon the presence of a union representative at an investiga-
tory interview constitutes protected concerted activity. Here
Ehlers selected Huber to act as his union representative in
such an interview, and was engaged in protected concerted
activity by so doing. While Respondent did not initially deny
Ehlers the right to representation by Huber, its action in
threatening Ehlers that Huber’s continued participation on his
behalf would lead to discipline for Ehlers, ‘‘is no less inter-
ference and restraint than an outright denial of his right.’’
Southwestern Bell Telephone Co., 227 NLRB 1223 (1977).
Thus whatever may be said about the right of Respondent
to threaten to discipline Ehlers for his failure to cooperate or
his failure to answer questions, this does not translate into
a right to threaten him because of the conduct of his union
representative, which would inhibit Ehlers’ exercise of his
protected rights to select a union representative in investiga-
tory interviews.
I also do not agree with Respondent’s unsupported asser-
tion that it could lawfully threaten to discipline Huber be-
cause of his allegedly ‘‘disruptive’’ behavior at the inter-
views. Huber is an employee of Respondent, in addition to
being a union official. Thus his actions in representing Ehlers
at the investigatory interview also constitutes protected con-
certed activity, and Respondent’s threat to discipline Huber
for his exercise of such activity, also would constitute a vio-
lation of Section 8(a)(1) of the Act.16 Good Hope Refineries,
245 NLRB 380, 384 (1979), enfd. 620 F.2d 57, 59 (5th Cir.
1980).
Respondent’s claim that the necessary implications of
Weingarten is that ‘‘a disruptive delegate loses the protection
of the Act,’’ is unsubstantiated by any precedent, or by any
language in such decision. While Weingarten might provide
support for Respondent’s assertion that a ‘‘disruptive’’ dele-
gate transforms the interview into an ‘‘adversary contest’’ or
a collective-bargaining confrontation, thereby sanctioning the
removal of the such delegate,17 such a finding does not in
my view render the delegate-employee’s conduct unpro-
tected, warranting Respondent disciplining or threatening to
discipline such employee.
Moreover, it is clear that an Employer may not during the
course of a Weingarten interview silence or attempt to si-
lence a union representative present at such interview. South-
western Bell Telephone Co., 251 NLRB 612, 613 (1980),
enf. denied 667 F.2d 470, 474 (5th Cir. 1982); Texaco Inc.,
251 NLRB 633, 636 (1980), enfd. 659 F.2d 124, 126–125
(9th Cir. 1981); NLRB v. Southwestern Bell Telephone, 730
F.2d 166, 172 (5th Cir. 1984); San Antonio Portland Cement
Co., 277 NLRB 338, 339 (1985); Greyhound Lines Inc., 273
NLRB 1443, 1448 (1985); United Technologies Inc., 260
NLRB 1430 (1982); Postal Service, 288 NLRB 864, 868
(1988).
301NEW JERSEY BELL TELEPHONE CO.
I agree with General Counsel’s contention that the above
cases provide support for a finding that the threats to dis-
cipline Ehlers for the conduct of his union representative at
an investigatory interview is a violation of the Act. Thus
such a threat is a clear attempt to silence Huber and prevent
his participation in the interview, which deprives Ehlers of
his protected right to union representation at such an inter-
view. Accordingly, Respondent’s threat to Huber is violative
of Section 8(a)(1) of the Act, and I so find.
B. Respondent’s Ejection of Huber from the Interview
and Huber’s Subsequent Arrest
There is no dispute that in the midst of the Ehlers inter-
view, Schadewald told Huber that his services were no
longer required as a union representative because of his al-
leged ‘‘disruptive’’ conduct. Schadewald ordered Huber to
leave, and advised that the interview would continue with an-
other union representative present.
The General Counsel and the Charging Party contend and
the complaint alleges that this action of Respondent deprived
and interfered with Ehlers protected rights under Weingarten.
Relying on the above cited cases, which prohibit the silenc-
ing of a union representative during a Weingarten interview,
it is argued that the ejection of Ehlers’ choice as a union rep-
resentative, is equally if not more violative of Ehlers’ Section
7 rights.
Respondent argues, on the other hand, that it was within
its rights to remove Huber from serving as a union represent-
ative because of his ‘‘disruptive’’ conduct during the Woods
and Ehlers interviews. Respondent points to various portions
of the Supreme Court’s decision in Weingarten, which pro-
vide that ‘‘[t]he employer has no duty to bargain with the
union representative [who may be permitted to attend the] in-
vestigatory interview. . . . The employer, however, is free to
insist that he is only interested, at that time, in hearing the
employee’s own account of the matter under investigation.
. . . Certainly his presence need not transform the interview
into an adversary [proceeding].’’ 420 U.S. at 260, 263. It is
Respondent’s contention that Huber’s ‘‘disruptive’’ conduct
at these two interviews, prevented Respondent from hearing
the employee’s own version, and transformed the interview
into an ‘‘adversary contest.’’ In these circumstances, Re-
spondent believes that Weingarten permits it to eject Huber
and continue the interview with another representative
present.
While Respondent’s quotations from Weingarten are accu-
rate, it is also important to consider other language from that
decision, which has received considerable emphasis in subse-
quent Board and court cases.
Thus the Court observed that
A single employee confronted by an employer inves-
tigating whether certain conduct deserves discipline
may be too fearful or inarticulate to relate accurately
the incident being investigated, or too ignorant to raise
extenuating factors. . . . [420 U. S. at 262–263. Cited
approvingly in NLRB v. Texaco Inc., 659 F.2d at 126;
Climax Molybdenum Co., 227 NLRB 1189, 1190
(1977), enf. denied 584 F.2d 360 (10th Cir. 1978);
Southwestern Bell, supra, 227 NLRB at 1223.]
The Supreme Court also noted in Weingarten,
There has been a recent growth in the use of sophis-
ticated techniques . . . to monitor and investigate the
employees’ conduct at their place of work. . . . These
techniques increase not only the employees’ feeling of
apprehension, but also their need for experienced assist-
ance in dealing with them. Thus, often . . . an inves-
tigative interview is conducted by security specialists;
the employee does not confront a supervisor who is
known or familiar to him, but a stranger trained in in-
terrogation techniques. [420 U.S. at 265 fn. 10. Cited
approvingly in Pacific Telephone Co., 262 NLRB 1048,
1049 (1982), enfd. 711 F.2d 134 (9th Cir. 1983); South-
western Bell, supra, 251 NLRB at 613.]
Finally, the Court emphasized that a major purpose of af-
fording employees the right to union representation is ‘‘to
eliminate the inequality of bargaining power between em-
ployees . . . and employers.’’ 420 U.S. at 966. ‘‘Put simply,
the union representative is there to help the employee in his
effort to vindicate himself.’’ NLRB v. Southwestern Bell,
supra, 730 F.2d at 172, citing Weingarten, 420 U.S. at 263–
264.
The Board has recognized these somewhat contradictory
portions of the Supreme Court’s opinion on Weingarten
rights vis-a-vis the role of the union representative, and con-
cluded that the Court ‘‘intended to strike a careful balance
between the right of an employer to investigate the conduct
of its employees at a personal interview and the role to be
played by a statutory representative who is present at such
an interview.’’ Texaco, supra, 251 NLRB at 636, citing
Southwestern Bell, 251 NLRB at 613. Thus in striking the
balance between the union representatives right to provide
assistance to the employee and the employer’s right to con-
duct interviews which are not transformed into an adversary
contest or collective-bargaining confrontation, the right of the
employer to regulate the role of the representative is limited.
Such regulations ‘‘cannot exceed that which is necessary to
ensure the reasonable prevention of such a collective bargain-
ing or adversary confrontation with the statutory representa-
tive.’’ Texaco, supra; Southwestern Bell, supra. Here Re-
spondent’s regulation of Huber’s role as representative con-
sisted of terminating that role. The issue to be decided is
whether that action exceeded Respondent’s rights to limit
Huber’s role under Texaco, supra. Indeed Texaco and South-
western Bell found that Respondent’s action is silencing the
union representative, went beyond the bounds of regulation
reasonably necessary to avoid such a confrontation with the
union representative. Without more, it follows that the termi-
nation of Huber’s participation in the interview is clearly
more of a denial of Ehlers’ rights, than merely insisting on
his silence.
However, Respondent does assert that Huber (unlike the
union representative in Texaco, supra and Southwestern Bell,
supra, in fact engaged in conduct which transformed the
interview into an adversarial contest. Thus it becomes nec-
essary to examine Huber’s conduct, keeping in mind that the
‘‘permissible extent of participation of representatives in
interviews is seen to lie somewhere between mandatory si-
lence and adversarial confrontation.’’ Postal Service, supra
288 NLRB at 867.
Schadewald made the decision on behalf of Respondent to
exclude Huber from further participation in Ehlers’ interview,
302 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 Huber testified that he believed that the security representatives
were ‘‘badgering’’ Woods by repetitious questions and were trying
to ‘‘entrap’’ Woods by putting words in his mouth. Huber further
felt that the security representatives were ‘‘belligerent, harassing, and
intimidating’’ the employees.
19 I note in this connection the Supreme Court’s reference to
‘‘fearful and inarticulate’’ employee as in need of union representa-
tion. This type of an employee might be most suscpetible to being
confused, harassed, or badgered by the same question being asked
over and over again.
so his testimony must be examined to evaluate the lawful-
ness of such conduct. Schadewald admitted that he consid-
ered Huber’s conduct in both the Woods and the Ehlers
interview, in deciding that Huber was being ‘‘disruptive.’’
The first item mentioned by Schadewald in his testimony
that led to his decision, related to his view that Huber was
responsible for the employees’ failure to provide forthcoming
answers. Thus Schadewald contends that the employees,
based on Respondent’s investigation, were in a position to
supply information about the events under investigation.
However, most of their responses to such questions were ‘‘I
don’t know’’ or ‘‘I don’t remember.’’ When Schadewald
sought to ask some of these questions again, Huber began to
interrupt and assert that the question had been asked and an-
swered before. Accordingly, Schadewald asserts that he con-
cluded that Huber’s conduct in this regard interfered with
Respondent’s efforts to obtain the facts, and was therefore
‘‘disruptive’’ and ‘‘adversarial’’ in nature.
In my view, Schadewald’s testimony in this area,
mischaracterizes the facts, and misperceives the appropriate
role of the union representative at an investigatory interview.
Schadewald’s assertion that the employee’s failure to respond
to questions was caused by Huber’s conduct is simply not
supported by the record. Indeed the employee’s lack of re-
sponsiveness began and continued before Huber said any-
thing in both interviews. Moreover both Ehlers and Woods,
along with Huber, made the same assertions, pursuant to the
Union’s policy that questions should be answered only once.
Thus I find no basis in the record to support Schadewald’s
purported conclusion that Ehlers or Woods would have been
more forthcoming in their responses, absent Huber’s conduct.
In fact, an examination of the continuation of the Ehlers’
interview when Baumuller took over as representative reveals
that Ehlers’ answers were not significantly more responsive
than they had been during the portion of interview where
Huber was representing him. Indeed Respondent suspended
Ehlers at the close of the interview with Baumuller present,
just as it did with Woods, after his interview with Huber as
his representative, for the same alleged ‘‘withholding of evi-
dence and failure to cooperate’’ in the investigation.
Moreover, it appears that Schadewald believes mistakenly
that Huber’s role at the interview was to assist Respondent
in obtaining admissions from the employees. I note in this
connection, Schadewald’s remarks to Houghtalin after he de-
cided to remove Huber, that Huber had ‘‘frustrated the inter-
view to the point that we were getting nowhere.’’ It is clear
that the employees are entitled under Weingarten to the ac-
tive assistance of a union representative during the interview.
Texaco, supra. Moreover the union representative is there to
help the employee in his effort to vindicate himself. South-
western Bell, supra 730 F.2d at 572. While the Supreme
Court’s decision delineates certain examples of the assistance
that union representatives can render to employees, including
clarifying facts or suggesting other employees who may have
knowledge of them, I do not believe that this list was meant
to be all inclusive. In my view, the union representative’s
role in actively assisting an employee also includes the right
to protect the employee from making unwarranted admis-
sions of improper conduct, which might lead to the discipline
of that employee. When security representatives ask ques-
tions that can reasonably be perceived by the union rep-
resentative as abusive, misleading, badgering, confusing, or
harassing, I believe that it is permissible for the representa-
tive to so indicate and advise against answering such ques-
tions. I would construe Huber’s objections to repetitious
questions, pursuant to union policy, as falling within the
above described parameters.18 I note particularly in this con-
nection the Supreme Court’s recognition of the ‘‘recent
growth of investigative techniques,’’ and rise of specially
trained ‘‘security specialists’’ conducting the interviews, rath-
er than a supervisor familiar to the employee. Thus I con-
sider that the security representatives practice herein of ask-
ing the same question a number of times, when the previous
answers are deemed unsatisfactory to the representative, to
be an example of an investigative technique, that undoubt-
edly would not be utilized by a mere supervisor conducting
an interview. Thus the Court recognized that it is appropriate
for the union representative to protect an employee against
the use of these kinds of investigatory techniques utilized by
the security representatives.
While I make no finding that the security representatives
actions in continuing to ask repetitious questions of employ-
ees, was necessarily confusing, harassing, badgering, or in-
timidating to the employees herein, I do believe that Huber
acted reasonably in so concluding.19 I do not agree with the
assertion of Respondent that the repeated insistence by Huber
that questions be asked only once is ‘‘no more than a direc-
tive not to answer questions . . . and a subterfuge to cir-
cumvent the obligation on an employee to answer ques-
tions.’’ In fact Respondent received an answer to every ques-
tion that it asked of both Ehlers and Woods, in many cases
two or three times. The fact that Respondent was not satis-
fied with these answers, even if it had reason to believe that
these answers were not truthful, does not warrant the con-
demnation of Huber’s conduct of urging that these questions
not be asked again. Therefore I conclude that Huber’s con-
duct in advising employees to answer questions only once,
as well as the Union’s policy supporting such a position, is
a reasonable exercise of the Union’s representative function,
and does not and did not herein, unduly interfere with Re-
spondent’s right to conduct its interviews, nor transform the
interview into an ‘‘adversarial confrontation.’’
While Huber may have at times interrupted security rep-
resentatives questions, these interruptions were solely re-
stricted to questions which had been asked and answered,
and were consistent with similar statements made by the em-
ployees involved with respect to these or similar questions.
Moreover, interruptions of questioning by union representa-
tives is not in and of itself, sufficient, to establish ‘‘adversar-
ial’’ or ‘‘obstructionist’’ conduct by a union representative.
Postal Service, supra at 867–868.
Schadewald also testified that in making his decision that
Huber was ‘‘disruptive,’’ he relied on the fact that Huber
was speaking loudly and leaned over the table coming be-
303NEW JERSEY BELL TELEPHONE CO.
20 See Postal Service, supra.
21 It is also noted that on a number of occasions throughout the
interviews, the security representatives threatened Huber with dis-
cipline because of his protected conduct, which I have also found
above would have been unlawful had it been alleged in the com-
plaint.
tween himself and the interviewee. Finally, he relied on as
he characterized it ‘‘just about the final thing,’’ of Huber ac-
cusing the security representatives of bugging the room. An
examination of the facts underlying these contentions, reveals
that the conduct of Respondent’s security representatives was
equally if not more responsible for any finding that such be-
havior of Huber was confrontational or adversarial. Indeed it
is admitted by Schadewald that the security representatives
were speaking loudly as well as Huber throughout the inter-
views, and I do not deem it significant, as does Schadewald,
that Huber may have ‘‘spoken loudly first.’’
The final incident as testified to by Schadewald was the
bugging accusation. I note that Huber made the remark in a
half sarcastic manner in direct response to the security rep-
resentative making what I have found to be an unlawful
threat to discipline Ehlers, stating merely that Huber hoped
that the threat had been picked up on the tape record.20 I
find that this comment by Huber was provoked by Respond-
ent’s unfair labor practices,21 and even at that was not a seri-
ous accusation that the room was bugged. It was the security
representatives who overreacted to this off hand remark, by
dropping their pencils, putting their hands in the air, Esposito
jumping out of his seat, loudly proclaiming that Huber had
made a serious accusation and suggesting calling in the po-
lice. Huber’s response was a calm request for the interview
to continue. However, the security representatives insisted,
without Huber having so requested, on bringing in local
management to confirm that the room was not bugged.
Moreover I find the overreaction of Respondent’s security
representatives to be particularly curious and somewhat dis-
ingenuous, since it is admittedly Respondent’s practice to re-
quest at the start of each interview that the hearing be re-
corded.
Accordingly, I conclude that Huber’s actions in represent-
ing Woods and Ehlers at the interviews on June 22 were not
shown to have transformed such interviews into an ‘‘adver-
sarial contest.’’ Therefore Respondent’s attempt to regulate
his conduct by removing him from further participation in
Ehlers’ interview, exceeded that which was necessary to en-
sure the reasonable prevention of an adversary confrontation
with the statutory representative. Texaco, supra, Southwestern
Bell, supra.
Thus Respondent’s actions in ejecting Huber from the
interview without Ehlers’ consent, interfered with Ehlers Sec-
tion 7 rights and is violative of Section 8(a)(1) of the Act.
Since Respondent acted unlawfully by ejecting Huber from
the interview, he had a protected right to remain on Re-
spondent’s premises to serve as Ehlers’ union representative
at his investigatory interview. Accordingly he cannot be con-
sidered as a trespasser. Therefore, Respondent has violated
Section 8(a)(1) of the Act by causing Huber to be arrested
on June 22, since he had a legitimate right to be on Re-
spondent’s premises. Tom’s Ford Inc., 253 NLRB 888, 893
(1980); Harvey’s Wagon Wheel, 236 NLRB 1670, 1677–
1681 (1978), enfd. 106 LRRM 2547 (D.C. Cir. 1980).
I do not believe that the Supreme Court’s decision in Bill
Johnson’s Restaurants v. NLRB, 461 U.S. 731 (1983), re-
quires a different result. There the Supreme Court affirmed
the Board’s right to find unfair labor practices premised upon
the baseless filing of state court lawsuits in retaliation for the
exercise of protected rights. However the Court cautioned
that in order to conclude that a state court suit lacks ‘‘a rea-
sonable basis,’’ the Board must first allow the state court to
proceed before proceeding to decide the issue, if there exists
a genuine issue of material fact with respect to such lawsuit.
In the instant case there is no issue of material fact with re-
spect to the trespassing charge, since it is undisputed that
Huber refused to leave Respondent’s premises. Thus the le-
gality of the trespassing charge is dependent on whether he
had a right to be there, which as I have decided above, is
protected by NLRB law, and is an issue peculiarly within the
province of Board expertise. Moreover, the criminal trespass-
ing proceedings against Huber have by agreement of all par-
ties been stayed pending the disposition of the instant matter.
Thus it would be anomalous and a waste of everyone’s time
to relegate the parties to the state criminal court to resolve
this issue. Diplomat Envelope Co., 263 NLRB 525, 535
(1982).
Therefore I reaffirm my conclusion that Respondent vio-
lated Section 8(a)(1) of the Act by causing the arrest of
Huber on June 22.
C. The Alleged Unilateral Change by Respondent on
June 23, and its Causing Huber’s Arrest on that Day
The complaint alleges that on June 23 Respondent promul-
gated, without bargaining with the Union, a requirement that
union representatives must obtain permission in order to
enter one of Respondent’s buildings, in violation of Section
8(a)(1) and (5) of the Act. The General Counsel relies on the
fact that on June 23, Huber was asked by Hoffman whether
he had permission to be in the garage, and ordered him to
leave when informed that Huber did not have such permis-
sion. Additionally, he relies on Scairpon’s remarks to Huber
at his discharge meeting that, ‘‘as you know you must obtain
permission prior to entering company premises.’’
The General Counsel couples that evidence with testimony
of the many union witnesses that they had never been denied
access to the premises, nor ever informed that advance per-
mission was necessary to enter company buildings, and ar-
gues that an unlawful unilateral change has been established.
I do not agree.
I do not believe that the General Counsel has established
that any new rule has been promulgated by Respondent on
June 23. In fact the record discloses that at least as far back
as 1976, when the Cifrodelli grievance was filed and re-
solved, Respondent has essentially taken the same position
that advance permission is required before union representa-
tives conduct business on Respondent’s premises. Moreover
the rule was enforced specifically against Huber on three to
four occasions between 1983 and 1985, where Huber was
told in various ways that he needed prior permission to enter
Respondent’s premises in order to conduct union business.
The testimony of record reveals however that in practice
Respondent has frequently modified the above rule in two re-
spects. First, it appears that Respondent has construed the re-
quirement for advance or prior permission to conduct union
business as being satisfied by the union representative ob-
304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
22 The record is also clear that very often advance permission has
been obtained prior to entering the premises, such as for grievance
sessions, negotiations and meetings.
23 Thus in December 1983, McMullen told Huber that he needed
prior permission to enter company buildings. In 1984, at a joint
union management meeting, Huber and McLaughlin were told by
management officials that union officials must obtain prior approval
from management in order to conduct union business on Respond-
ent’s property. Huber’s disciplinary reprimand in 1984 read that he
‘‘entered the building without arranging prior approval from man-
agement.’’ Moreover the Cifrodelli grievance indicates that Respond-
ent required advance authorization from management to be on com-
pany premises.
24 The Cifrodelli grievance and the prior incidents involving
Huber.
25 Fairmont has been modified by the Board’s recent decision in
Jean Country, 291 NLRB 11 (1988).
taining permission from the supervisor before conducting the
union business, but not necessarily prior to entering the facil-
ity.
Second, it appears that while the policy on its face pro-
hibits the conducting of any union business on the premises,
without further description, in practice it has not been en-
forced as to union business on the employees own time, such
at lunch or break time. Thus the testimony of both manage-
ment and union officials indicated that no permission is re-
quired to conduct union business during nonwork time.
While union representatives who testified denied the exist-
ence of any company rule or policy with respect to permis-
sion to conduct union business, they concede that they gen-
erally as a matter of ‘‘common courtesy’’ do request permis-
sion from a supervisor when they wish to speak to an em-
ployee who is working about union business, if the discus-
sion will exceed a ‘‘reasonable’’ amount of time. It is inter-
esting that the union representatives utilize the term ‘‘com-
mon courtesy,’’ which is precisely the words used in the set-
tlement of the Cifrodelli grievance.
Therefore I conclude that at least since the Cifrodelli
grievance, there has been a policy utilized by Respondent,
which the union was aware of, although not agreeing to it,
that a union representative should obtain permission from
management before conducting union business on company
time. Furthermore the requirement for obtaining permission
can be satisfied by asking for permission from supervisors
after entering Respondent’s premises.22
I do not view Respondent’s actions on June 23 as a pro-
mulgation of a new rule, but merely Hoffman’s enforcement
of its old rule, supported by Scairpon. Although the enforce-
ment of the rule is somewhat inconsistent with Respondent’s
stated policy of requiring permission only before speaking to
employees, I note that similar statements were made to
Huber in his prior incidents as far back as 1983.23
Accordingly, I conclude that General Counsel has failed to
establish the promulgation of a new rule with respect to ac-
cess, as alleged in the complaint. The statements of Scairpon
and Hoffman do not amount to the promulgation of any rule,
but appeared to be their attempt to enforce Respondent’s rule
then in effect. It is true that their statements do not reflect
what I have found to be the established modification of the
rule, i.e., that permission to conduct union business can also
be obtained after the union representative enters the prem-
ises. However, since prior statements and written documents
by Respondent’s officials, also do not reflect these modifica-
tions,24 I conclude that no change in Respondent’s position
or rules has been established.
Therefore I shall recommend that the 8(a)(1) and (5) alle-
gation in the complaint be dismissed.
Although Respondent’s actions concerning Huber on June
23 do not constitute an unlawful unilateral change, this find-
ing does not fully dispose of the legality of Respondent’s
conduct in ordering Huber to leave and filing trespass
charges against him for his failure to do so promptly on that
day.
The General Counsel argues that under the principles es-
tablished in Fairmont Hotel, 282 NLRB 139 (1986), and ap-
plied in Schwab Foods Inc., 284 NLRB 1055 (1987),25 the
employees Section 7 rights of obtaining Weingarten informa-
tion was more compelling than Respondent’s tenuous prop-
erty rights herein. Respondent argues that, Fairmont and its
progeny involve access to property to picket, organize and
handbill, and that a more applicable precedent is Holyoke
Water Power Co., 273 NLRB 1369 (1985), enfd. 778 F.2d
49 (1st Cir. 1980), involving a union’s request to enter an
employer’s property to conduct a noise level test. While I
agree with Respondent that Fairmont (subsequently modified
by Jean Country) are not applicable, I do not agree that Hol-
yoke, supra, is the appropriate precedent to resolve the issue
herein. Holyoke involves the access rights of nonemployees
union officials to enter a facility, and deals with a balancing
of the employees’ right to proper representation against the
Employer’s property rights.
In my view the issue of Respondent’s right to restrict
Huber’s access rights is properly determined by analyzing
Tri-County Medical Center, 222 NLRB 1089 (1976). The
Board in modifying its previously decided case of GTE
Lenkurt Inc., 204 NLRB 921 (1973), observed that the latter
case ‘‘must be narrowly construed to prevent undue inter-
ference with the right of employees under Section 7 of the
Act freely to communicate their interest in union activity to
those who work on different shifts.’’ Accordingly, the Board
concluded that in order to bar off-duty employees from its
facilities, an Employer’s rule is valid only if it ‘‘(1) limits
access solely with respect to the interior of the plant and
other working areas; (2) is clearly disseminated to all em-
ployees; and (3) applies to off-duty employees seeking ac-
cess to the plant for any purpose and not just to those em-
ployees engaging in union activity. Finally, except where jus-
tified by business reasons, a rule which denies off-duty em-
ployees entry to parking lots, gates, and other outside non-
working area will be found invalid.’’ Id. at 1089.
Before considering the applicability of the Tri-County
standards, it is necessary to decide whether Huber should be
considered an off-duty employee. Respondent asserts that
Huber should not be considered an employee for the pur-
poses of assessing his access rights, since he has performed
virtually no ‘‘production’’ work for Respondent for the past
several years. However, Huber although a full-time employee
of the Union, retained his employee status, as well as a com-
pany I.D. card. Moreover pursuant to the parties collective
bargaining agreement, over half of his time was spent on
‘‘joint time,’’ for which he is paid by Respondent. Tri-Coun-
ty does not distinguish among off-duty employees about their
reasons for being off duty. Thus employees on leave as a re-
sult of employment related injuries, Pizza Crust Co., 286
305NEW JERSEY BELL TELEPHONE CO.
26 The record contains no evidence of such dissemination. Admit-
tedly respondent has not set forth any such rule in writing.
27 Additionally, when Hoffman called the police, he told the police
that there was ‘‘a union official on the premises without prior man-
agement approval.’’
28 I note also that Scairpon did not testify herein to explain these
remarks that he made to Huber.
NLRB 490 fn. 1 (1987), enfd. 862 F.2d 49 (3d Cir. 1988),
or an employee on layoff status Ford Motor Co., 222 NLRB
855, 857 (1976), do not lose their employees status for pur-
poses of Tri-County analysis.
Accordingly, based on the above, it is clear that Huber
should be considered an off-duty employee, whose rights
under Section 7 to engage in union activity with other em-
ployees should not be unduly interfered with. Tri-County,
supra.
In examining the Tri-County criteria, Respondent’s rule in-
volving access is limited to the interior of the plant and other
working areas, but fails to comply with the other two essen-
tial requirements. Thus the rule has not been clearly dissemi-
nated to all employees,26 and does not apply to employees
seeking access for any purpose, but only to those engaging
in union activity. (Here to those ‘‘conducting union busi-
ness.)’’
Therefore under Tri-County, Huber had a right to be on
Respondent’s premises, contrary to the positions taken by
Respondent’s supervisors that he needed permission to be
there. That still leaves the crucial question of whether
Huber’s Section 7 rights to communicate union concerns to
the other employees, has been unduly interfered with, Tri-
County, supra, by Respondent’s conduct in ordering him to
leave and then causing his arrest for his failure to do so
promptly.
Since it is clear that Huber was engaged in protected con-
certed activity while on Respondent’s premises (discussing
Weingarten rights with the employees), Respondent has the
burden of justifying its actions by establishing that Huber
violated a valid rule or engaged in other improper conduct
warranting his removal. I do not believe that Respondent has
met its burden in this regard.
Respondent contends that Huber was in violation of Re-
spondent’s established rule, which he himself had previously
been disciplined for, that permission must be obtained from
a supervisor before a union representative conducts union
business with employees on working time. I note initially
that Hoffman the official who ordered Huber to leave, caused
his arrest, and and filed trespassing charges against him,
asked Huber ‘‘if he had permission to be in the garage.’’27
Hoffman did not ask Huber if he had permission to speak
to employees on the job. Moreover, when Huber was termi-
nated for his conduct during this incident, among others,
Scairpon the official who made the decision to terminate
him, only made reference to Huber having failed to obtain
permission to enter the premises, also saying nothing about
Huber speaking to employees on the job.28 This evidence
tends to suggest that Huber was in fact ordered to leave be-
cause of his failure to obtain permission to enter the premises
rather than as Respondent contends, for speaking to employ-
ees on the job without such permission. If so, this would be
squarely in violation of Tri-County, supra, since Respondent
clearly had no valid rule preventing access of off-duty em-
ployees such as Huber to the premises.
Assuming that Respondent’s position is accepted vis-a-vis
the reason for its actions, it has still not justified its decision
to order Huber to leave. Thus Respondent’s rule that it as-
serts Huber violated, requires him to obtain permission from
a supervisor to conduct ‘‘unions business’’ with employees
on the job. Such a rule is directed only against the conduct
of ‘‘union business,’’ and is invalid on its face. Southwest
Gas Corp., 283 NLRB 543, 546 (1987); C.O.W. Industries
Inc., 276 NLRB 960 (1985). See also Provincial House Liv-
ing Center, 287 NLRB 158 (1988); Atlas Metal Parts Co.,
252 NLRB 205, 210 (1980); Flex Plastics Inc., 262 NLRB
651, 659–660 (1982), enfd. 726 F.2d 272, 276 (6th Cir.
1984). Therefore any disciplinary action pursuant to the al-
leged violation of this rule is unlawful.
Respondent argues, however, that notwithstanding the ref-
erence to ‘‘union business,’’ in its rule, it is not discrimina-
tory, since in practice it also prohibits any discussions (ab-
sent permission) with employees who are working. While
Houghtalin’s testimony supports this interpretation, the testi-
mony of Respondent’s other supervisors, plus its actions with
respect to Huber, does not. As noted, Hoffman the supervisor
who ordered Huber to leave and filed charges against him,
candidly admitted that the rule only applies to ‘‘union busi-
ness.’’ He admits further that if a union official wishes to
speak to an employee on the job about baseball or to say
hello, he need not obtain permission from a supervisor. How-
ever, if in addition to or instead of saying hello, the official
informs the employee about a union meeting, permission
from a supervisor would be required before speaking to an
employee. Additionally, Kurelja, who reported Huber for a
prior violation of Respondent’s rule, resulting in a discipli-
nary reprimand, testified in the same manner. Thus according
to Kurelja under Respondent’s rule, permission would be re-
quired for a union official to inform an employee about a
union meeting, but not to say ‘‘hi,’’ even though both dis-
cussions take the same amount of time.
Finally, and most importantly the conduct of Hoffman and
Siegel, who were directly involved with Huber on June 23,
conclusively demonstrates that Respondent’s rule applies
only to the conduct of ‘‘union business.’’ Thus when Siegel
informed Hoffman that Huber was a union delegate speaking
to employees, Hoffman admits stating,’’let’s go find out why
he’s here’’? If Respondent’s rule prohibited any discussions
with employees on the job, as it contends, there would be
no need to find out why Huber ‘‘was here,’’ since the sub-
stance of his discussions would have been irrelevant. Further,
when they approached Huber, they did not immediately ask
him about permission or ask him to leave, but asked what
he was doing. It was only after they ascertained that Huber
was engaged in union business, did Hoffman ask about
whether Huber had permission to be there, and ordered him
to leave when he admitted that he did not.
Respondent also contends that Huber was ordered to leave
because he was interfering with the work of the employees.
However the evidence fails to support this assertion. First of
all most of the employees with whom Huber was speaking
had not been given assignments, and were waiting to be
306 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
29 See Mueller Brass Co., 204 NLRB 617, 620 (1973).
30 I note that I have found above that Respondent’s actions with
respect to Huber on June 22 in connection with his conduct at the
interviews was violative of the Act.
31 Indeed as will be detailed below, Neithardt did not request
Huber to serve as his union representative, because he felt Huber
was not available because of his arrest either in the day.
32 I note in this connection that the employees scheduled for inter-
view on June 23 are entitled to consultation with a union representa-
tive prior to being interviewed. Climax Molybdenum Co., 227 NLRB
1189 (1977), enfd. denied 584 F.2d 360 (10th Cir. 1978); Pacific
Telephone Co., 262 NLRB 1048 (1982), enfd. 711 F.2d 134 (9th
Cir. 1983).
taken to security interviews.29 While a few of the employees
who walked over to listen to Huber, were not scheduled for
interviews that day, and presumably had been given assign-
ments, it is obvious that Respondent was not concerned
about this fact. When Hoffman and Siegel encountered
Huber, they paid no attention to the other employees. They
made no effort to tell any of the employees to get back to
work, even after Huber refused to leave until he finished his
discussions. Indeed if interference with work were truly a
matter of concern to Hoffman and Siegel on June 23, they
would have ordered the employees who had assignments to
return to work, rather than immediately calling the police to
remove Huber.
In my view when Hoffman ordered Huber to leave on
June 23, he acted pursuant to what appears to be a general-
ized consensus among Respondent’s officials, that union
business or discussions are inherently more of an interference
with the work of employees than other types of business or
discussions. This policy is unlawful, and cannot justify
Huber’s removal from its premises.
Moreover, I note that Hoffman was aware of the fact that
Huber had allegedly been ‘‘disruptive’’ at the security inter-
views conducted the day before, requiring his arrest.30 Thus
when Hoffman found out Huber was discussing
‘‘Weingarten’’ rights with employees, he was determined to
stop such discussions as soon as he could. Respondent was
not at all troubled by Huber interfering with employees
work, but was concerned with preventing Huber from poten-
tially interfering with the success of the subsequent inves-
tigatory interviews, by advising the employees of their
‘‘Weingarten’’ rights. Furthermore its actions in insisting on
Huber’s arrest, notwithstanding the fact that he already had
left the premises provides additional support for this conclu-
sion. Thus when Hoffman called the police he asked for a
squad car to come down and ‘‘keep the peace and ask the
person to please vacate the premises.’’ Huber had finished
his discussion with the employees and was outside the prem-
ises when the police arrived. Huber explained to the police
that he had already left the building. However the police of-
ficer replied that Hoffman intended to file trespassing
charges, and arrested Huber. It is obvious from the above,
that it was at Hoffman’s insistence that Huber was arrested,
and not as contended by Respondent that the police would
take no action unless charges were filed. Here it was not
necessary for the police to do anything, since Huber had left
on his own. Yet Respondent insisted on Huber’s arrest. I
conclude that Respondent aware of Huber’s actions on June
22, did not want him to be present at any of the interviews
scheduled for June 23, and caused his arrest at least in part
to prevent him from being available to serve as a union rep-
resentative at these interviews.31
In any event, Respondent has fallen far short of establish-
ing any lawful reason for interfering with Huber’s Section 7
rights, as well as the rights of the other employees to obtain
Weingarten advice.32 Respondent has therefore violated Sec-
tion 8(a)(1) of the Act by ordering Huber to leave the prem-
ises, causing his arrest and filing trespassing charges against
him.
D. The Refusal to Permit Huber to Serve as Union
Representative for Neithardt and Ordering
Huber to Leave
In Missouri Portland Cement Co., 284 NLRB 432 (1987),
the Board stated:
Section 7 of the Act encompasses the right of em-
ployees, acting through their union, freely to select their
representatives . . . . Although a party lawfully may,
under certain circumstances, refuse to meet with an-
other party’s bargaining representatives, the party mak-
ing such a refusal must establish that the representatives
with whom it refuses to meet have created by their own
actions an atmosphere of such ill will that good-faith
bargaining is virtually impossible or that their participa-
tion in bargaining otherwise represents a clear and
present danger to the bargaining process. The cir-
cumstances justifying a refusal to meet with particular
representatives are therefore quite restricted.
Moreover,
[A] fundamental entitlement of the collective-bargaining
process must be recognized. This the right of either
labor or management to select representatives of its
choosing for participation in the various phases of a
complex collective-bargaining relationship and, absent
extreme reason to the contrary, to be free of inter-
ference in the process from the opposite party. [Arizona
Portland Cement Co., 281 NLRB 304, 307 (1986),
quoted in Lehigh Portland Cement Co., 287 NLRB 978,
984 (1980).]
Finally, the Board has held,
It is well established that in the absence of special cir-
cumstances, an employer does not have the right of
choice affirmative or negative as to whom is to rep-
resent employees for any of the purposes of collective
bargaining. [Footnote omitted. Oates Bros. Inc., 135
NLRB 1295–1297 (1962).]
It is true that Weingarten interviews are not bargaining
sessions, and the above cited cases, arise in 8(a)(5) contexts,
and deal with negotiation or grievance situations. However,
I believe that the Board’s language therein is instructive in
analyzing the rights of the employer vis-a-vis the union to
select and or refuse to meet with Weingarten representatives
for its employees. As noted above, the right to select its own
representatives extends to all ‘‘phases of complex collective
bargaining relationship.’’ Arizona Cement, supra. Addition-
ally, absent special circumstances, an employer may not
307NEW JERSEY BELL TELEPHONE CO.
33 I note in this connection that Weingarten rights do not accrue
in a nonunionized plant. E. I. du Pont, 289 NLRB 627 (1988); Sears
& Roebuck & Co., 274 NLRB 230 (1985), in part because the union
representatives role is to be able to ‘‘safeguard not only the particu-
lar employee’s interest, but also the interests of the entire bargaining
unit.’’ Du Pont & Co., supra; Sears & Roebuck, supra at 231, 232.
Additionally, ‘‘dealing with’’ an employer in a Weingarten setting
is ‘‘a primary indicium of labor organization status as well as a tra-
ditional union function.’’ Sears & Roebuck, supra at 232.
choose who is to represent employees, ‘‘for any of the pur-
poses of collective bargaining’’ emphasis supplied Oates
Bros., supra.
In my view, representing an employee at a Weingarten
interview is clearly one of the purposes of collective bargain-
ing Oates Bros., supra, and at least one ‘‘phase of a complex
collective bargaining relationship.’’ Arizona Portland, supra.
Thus the Board’s view that ‘‘the circumstances justifying a
refusal to meet with particular representatives, are, therefore,
quite restricted,’’ Missouri Portland, supra, would seem to
apply to Weingarten interviews as well.33
Here the evidence discloses that Respondent selected
David to a act as union representative for Neithardt, and
more importantly refused to permit the higher ranking union
official Huber to substitute for David, and serve as
Neithardt’s representative in the interview.
Respondent argues that its conduct in this regard is not
violative of the Act, principally because Neithardt made no
specific request that Huber serve as his representative. Appa-
lachian Power Co., 253 NLRB 931, 933–934 (1980). It fur-
ther contends that Respondent supplied Neithardt with a
union representative (David) pursuant to its established rule
of utilizing the nearest available union delegate and that such
action satisfies its obligations under Weingarten. Pacific Gas
& Electric Co., 253 NLRB 1143, 1144 (1981); Coca-Cola
Bottling Co., 227 NLRB 1276 (1977). I do not agree with
either Respondent’s assessment of the above-cited cases, nor
its analysis of the facts herein.
Appalachian Power, supra, deals only with the well-estab-
lished requirement set forth in Weingarten itself that the em-
ployees must initiate a request for union representation, and
finds further that the union cannot make such a request for
him. It says nothing about the instant situation, where a re-
quest has been made by the employee, and the employer de-
cides who should and more significantly, who should not
serve as the representative. As I have detailed above, such
action by Respondent must be judged in recognition of the
Board’s well-established reluctance to interfere with a labor
organizations choice of its representatives.
Moreover, I have credited the testimony of Neithardt that
he intended to select Huber as his representative, and in fact
preferred that Huber so serve because of his extensive expe-
rience, but did not do so because he thought that Huber was
unavailable due to his arrest caused by Respondent earlier
that morning. I have also found that one of the reasons that
Respondent unlawfully caused Huber’s arrest was to prevent
or inhibit him from serving as a union representative in the
interviews to be conducted that day. Accordingly, since in
effect, it was Respondent’s unlawful conduct that caused
Neithardt to fail to specifically request Huber as his delegate,
Respondent cannot rely upon this failure to justify its refusal
to permit Huber to serve.
Additionally, a close examination of the facts in Coca
Cola, supra, and Pacific Gas, supra, do not support Respond-
ent’s position. In Coca-Cola, supra, the Board found that an
employer need not postpone an Weingarten interview with an
employee, because the union representative requested by the
employee was unavailable. Stressing the Supreme Court’s ad-
monition that the employees Weingarten rights may not
interfere with legitimate employer prerogatives, the Board
concluded that the right to hold investigatory interviews
without delay is such a ‘‘legitimate employer prerogative.’’
Here there is no ‘‘legitimate employer prerogative’’ involved,
or even alleged. There is no question of delay, since Huber
and David served at the same time. Thus, Respondent’s as-
sertion that David was ‘‘the nearest available union dele-
gate’’ is simply not accurate. Huber was just as available as
David. Moreover, Respondent has asserted no other business
or production reason for its decision to choose David and ex-
clude Huber. In fact it would seem that Respondent would
if anything lose production time by its action, since if it per-
mitted Huber to serve as union representative, it could have
sent David back to work. See E. I. du Pont, supra at fn. 14.
As for Pacific Gas, supra, the underlying rationale of that
case in fact detracts from Respondent’s position rather than
supports it. The employee in Pacific Gas requested that an
offsite steward serve as his representative, rather than the on-
site steward provided by the company, which acted in accord
with prior practice. The Board relying on Coca-Cola, supra,
again stressed the availability factor, observing that 40 min-
utes of production time would be wasted should the company
grant the employees request for an offsite steward. Addition-
ally however, the Board emphasized the role of the union in
the selection of its representatives. Thus the Board concluded
that an employee is not always entitled under Weingarten to
the presence of a specific representative, but to ‘‘the pres-
ence of a representative designated by the union to represent
all employees.’’ Id. at 1143. Although the Board conceded
that the employee did not want the onsite steward to rep-
resent him, because he doubted the steward’s ability to rep-
resent him, it nevertheless relied more heavily on the fact
that the union had designated the steward as the representa-
tive for the employee. The Board viewed the employee’s ac-
tion as nullifying the union’s choice of steward, and found
that the employer acted reasonably and in ‘‘conformity with
the Union’s directions’’ in denying the employee’s request.
Id. at 1144. It is apparent that the Board’s emphasis in Pa-
cific Gas, supra, on the role of the Union in designating its
representative, is merely additionally illustrative of its con-
cerns expressed in Arizona Portland, supra, Missouri Port-
land, supra, and Oates Bros., supra, as to one party’s right
to choose its own representative.
While it is true that David had been designated by the
Union as acting shop steward, he had never acted as a
Weingarten representative before. Huber was a general dele-
gate, with extensive experience in Weingarten interviews and
other union management meetings, and had the authority
over his subordinate David with regard to union matters.
Thus under the facts of this case, Huber attempted to des-
ignate himself to act as the union representative for Neithardt
instead of David. I believe that Respondent must establish
some significant business or operational concerns, or other
reasons valid in law, in order to deny Huber’s request.
308 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
34 Respondent relies on the testimony of Cookson to establish that
David was in fact fully qualified to serve as a union representative.
Such a contention misses the point. The issue is not whether David
was qualified to serve as union representative, but who shall make
the decision as to who will act or who will not act, as a union rep-
resentative in Weingarten interviews. In my opinion, all other things
being equal, it is the right of the union and not the employer to
make such determinations.
35 Thus Respondent violated the Act by ordering Huber to leave
the interview on June 22 and the garage on June 23.
36 See Hilton Hotels Corp., 282 NLRB 819 (1987); Superior
Warehouse Grocers, 277 NLRB 18, 23 (1985).
It is clear that Respondent has made no such showing.
Houghtalin, who made the decision to forbid Huber from
serving, contends that he relied in part on the fact that
Neithardt made no specific request for Huber. Not only have
I found that reason as discussed above to be insufficient jus-
tification for denying the request, I also conclude that it was
in fact irrelevant to Houghtalin’s decision. As noted above,
Houghtalin admitted that his decision to deny Huber the right
to participate in the interview, would have been no different
even had Neithardt made a specific request for Huber. I find
this admission to be particularly significant, especially in
view of the conduct of Respondent’s officials with respect to
Cookson. When Cookson appeared at Oradell and then later
at River Edge, he was allowed to interrupt security inter-
views conducted with employees Testa and Pfeiffer, in order
to ‘‘talk to his people.’’ On each occasion he spoke with the
employees and the union representatives involved,
(Baumuller and David), to satisfy himself that the employees
were comfortable with the particular representatives, and that
the representatives were capable of handling the job.
Cookson testified credibly that had he concluded that either
of these questions were answered negatively, he would have
sought to substitute himself as the union representative.
Cookson did not so conclude, so he made no such request.
However I am convinced and so find that had Cookson de-
cided to substitute himself for either Baumuller or David,
that such request would have been granted.
I note in this connection that unlike the Huber situation,
Respondent’s representatives allowed Cookson to confer with
the employees. Respondent’s officials did not as they did
with Huber, question Cookson’s right to be in the building,
in view of his failure to obtain permission.34
It is obvious that Houghtalin’s decision to bar Huber from
serving as Neithardt’s representative, was based solely on the
fact that Huber was making the request, and Respondent’s
desire to prevent him from so serving.
Indeed Houghtalin conceded that the main reason for his
decision that Huber not be allowed to participate in the inter-
view, was the ‘‘volatility of the situation.’’ Houghtalin clari-
fied this comment further by explaining that since Huber had
refused to leave the Ehlers interview on June 22, and refused
to leave the garage earlier on June 23, he did not want to
risk another such confrontation by permitting Huber to serve
as union representative for Neithardt.
I find those reasons to be far from sufficient to justify Re-
spondent’s actions. I have concluded that Huber’s refusal to
leave Respondent’s premises on both occasions, was precip-
itated by unlawful conduct of Respondent.35 Therefore Re-
spondent cannot rely upon Huber’s prior refusals to leave the
premises, to justify its refusal to allow him to serve as
Neithardt’s representative. Additionally, I am of the opinion
that Respondent was in any event not truly concerned with
the possibility of a ‘‘confrontation’’ if Huber was the rep-
resentative. In my judgment Respondent’s real problem with
Huber acting as representative, was its belief that his aggres-
sive representation of employees, particularly his persistent
advice that questions not be answered more than once, might
interfere with the security representatives ability to obtain in-
criminating information from the employees. Such a fear
does not warrant Respondent’s decision to prevent Huber
from acting as Neithardt’s representative.
Accordingly, based on the above analysis, I conclude that
Respondent’s actions with regard to Huber interfered with
the Section 7 rights of Neithardt, as well as interfering with
the Union’s right to designate its representatives, in violation
of Section 8(a)(1) of the Act.
It follows, as detailed above that since Respondent acted
unlawfully in preventing Huber from serving as union rep-
resentative, that its ordering him to leave the premises is also
unlawful, as well as its actions in causing his arrest and fil-
ing trespassing charges against him. These actions of Re-
spondent are also violative of Section 8(a)(1) of the Act, and
I so find.
E. The Termination of Huber
Respondent contends that Huber was discharged for failing
to observe Respondent’s rule against conducting union busi-
ness involving employees at work, without obtaining permis-
sion from employees, plus insubordination in refusing to
leave the premises when ordered by supervision to do so.
Since I have concluded above that Respondent’s rule requir-
ing permission for the conducting of union business is un-
lawful on its face, any discipline based upon any violation
of such rule is consequently unlawful. Moreover, I have
found further that the Respondent’s motivation in ordering
his removal from the premises on the morning of June 23
was to inhibit his exercise of protected activity, rather than
any interference with work as Respondent contends.
Therefore his refusal to leave the premises on that morn-
ing when so ordered cannot be considered insubordinate,
since the order that he leave was itself unlawfully moti-
vated.36
Similarly, I have found that Respondent acted unlawfully
when it refused to permit Huber to act as the union rep-
resentative for Neithardt during his interview later in the day
on June 23. Having so concluded, the order by Respondent
for Huber to leave the premises is similarly unlawful, and
Respondent cannot view Huber’s conduct of refusing to
leave as insubordinate. Hilton Hotels, supra; Superior Ware-
house, supra.
Finally, with respect to the June 22 incident, Respondent
insists that it did not terminate Huber based upon his conduct
at the interviews, but only because he did not leave the
premises when requested. I reject Respondent’s contentions
in this regard. In fact, the only reason that Huber was or-
dered to leave the premises on June 22, was that the security
representatives had determined that his conduct at the inter-
views was ‘‘disruptive,’’ and his presence was no longer
necessary. Since I have found that this conduct of the secu-
rity representatives unlawfully interfered with the Section 7
rights of Ehlers, its is obvious that Huber’s presence was still
309NEW JERSEY BELL TELEPHONE CO.
essential in order for the interview to lawfully continue.
Therefore the order to Huber to vacate the premises is simi-
larly unlawful, and his refusal to leave is not insubordination.
Hilton Hotels, supra, Superior Warehouse, supra. Thus Re-
spondent cannot lawfully discharge Huber for any of the
three refusals to obey a supervisory order to leave, since all
of the underlying orders were unlawful themselves.
Accordingly, Respondent’s action in discharging Huber on
June 29 was motivated solely by his exercise of protected,
concerted and union activity, in violation of Section 8(a)(1)
and (3) of the Act. I so find.
CONCLUSIONS OF LAW
1. The Respondent, New Jersey Bell Telephone Company,
is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local 827, International Brotherhood of Electrical
Workers, AFL–CIO is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by the
following conduct:
a. Threatening its employee Daniel Ehlers with discipli-
nary action, if his Union Representative Huber continued to
represent Ehlers at his investigatory interview.
b. Depriving Ehlers of his right to assistance and represen-
tation at his investigatory interview, by ejecting Huber,
Ehlers’ chosen union representative, from the interview, di-
recting Huber to leave the premises, causing Huber’s arrest
and filing trespassing charges against him, and continuing
Ehlers’ interview without the presence of Huber.
c. Depriving Neithardt of his right to assistance and rep-
resentation at his investigatory interview, by refusing to per-
mit Huber to serve as his representative at said interview, di-
recting Huber to leave the premises, causing Huber’s arrest
and filing trespassing charges against him, and continuing
Neithardt’s interview without the presence of Huber.
d. Preventing and attempting to prevent Huber, an off-duty
employee from advising other employees regarding their
rights with respect to union representation at investigatory
interviews, by ordering Huber to leave the premises, causing
his arrest, and filing trespassing charges against him.
4. Respondent violated Section 8(a)(1) and (3) of the Act
by discharging its employee Huber because Huber engaged
in activities on behalf and in support of the Union, and be-
cause he engaged in other protected concerted activity.
5. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
6. Respondent has not engaged in any other unfair labor
practices alleged in the consolidated complaint.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices violation of Section 8(a)(1) and (3) of the Act, I
shall recommend that it be ordered to cease and desist there-
from and take certain affirmative action designated to effec-
tuate the policies of the Act. Having found that Respondent
violated Section 8(a)(1) and (3) of the Act by terminating
William Huber on September 29, I shall recommend that it
be ordered to offer Huber immediate and full reinstatement
to his former position of employment or, if this position no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and
to make whole Huber for any loss of earnings that he may
have suffered. Loss of earnings shall be computed in the
manner prescribed in F. W. Woolworth, 60 NLRB 289
(1950), and shall include interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1073 (1987).
Respondent shall also be ordered to expunge from its files
any reference to the discharges of William Huber and notify
him in writing that this has been done and that evidence of
such actions will not be used by Respondent as a basis for
any future action against him.
[Recommended Order omitted from publication.]