New York Telephone Co.

National Labor Relations Board - Board Decisions

Jun 4, 1973

203 N.L.R.B. 1153 (N.L.R.B. 1973)

NEW YORK TELEPHONE CO.
New York Telephone Company and Gladstone A. Box-
ill. Case 29-CA-2448
June 4, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On December 5, 1972, Administrative Law Judge
Samuel Ross issued the attached Decision in this pro-
ceeding . Thereafter , both the General Counsel and
the Respondent filed exceptions and supporting
briefs . The General Counsel also filed a brief in an-
swer to the Respondent 's exceptions and the Respon-
dent filed a brief in answer to the General Counsel's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended , the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings , findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, The National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, New York Telephone Com-
pany, Brooklyn, New York, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order.
MEMBER KENNEDY, concurring in part and dissenting
in part:
I concur in the dismissal of the allegations of the
complaint that the Respondent violated Section
8(a)(1) and (3) by its suspension of Boxill on April 15,
1971, and his discharge on April 25, 1971. I dissent,
however, from the findings that the Respondent vio-
lated Section 8(a)(1) by threatening Boxill with vari-
ous reprisals to compel his attendance at the interview
on February 17, 1971, without union representation
and by thereafter suspending him for 3 days because
of his refusal to be interviewed without such represen-
tation. In my dissents in Quality Manufacturing Com-
pany' and Mobil Oil Corporation,2 I pointed out the
difficulties which would arise from the Board's con-
clusions in those cases that the Act extended to em-
1153
ployees the right to demand union representation at
such interviews. In my opinion, the instant case aptly
illustrates those difficulties.
1195 NLRB 1970
z 196 NLRB 1052
DECISION
STATEMENT OF THE CASE
SAMUEL Ross, Administrative Law Judge: This case was
tried in Brooklyn, New York, on September 11 and 12, 1972.
The charge was filed by Gladstone A. Boxill on July 1, 1971,
and a complaint based thereon issued on May 31, 1972, and
was amended on August 22,,1972. The New York Tele-
phone Company (the Respondent) filed answers to the com-
plaint and amended complaint which deny their substantive
allegations and the commission of unfair labor practices. In
substance, the amended complaint alleges that the Respon-
dent violated Section 8(a)(1) and (3) of the Act by denying
Boxill's request on February 17, 1971,1 to have a union
representative present during his interview by the Respon-
dent regarding his and other employees' alleged miscon-
duct; threatening Boxill with discharge and with physical
ejection from its premises unless Boxill submitted to the
interview without union representation; suspending Boxill
for 3 days on February 17, inter alia, because he had insisted
on having a union representative with him during his inter-
view by the Respondent; and terminating Boxill's employ-
ment on April 15, inter alia, because of his prior insistence
on union representation during his February 17 interview
by the Respondent and his 3-day suspension therefor.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and the Respondent,
I make the following:
FINDINGS OF FACT
1. COMMERCE
The Respondent is a New York corporation which is
engaged in the business of providing telephone communica-
tions and related services in the State of New York. During
the past year, a representative period, the Respondent's
gross revenues from its operations exceeded $500,000, and
it purchased and caused to be shipped to its facilities in New
York State from places outside the State, goods and materi-
als valued in excess of $50,000. The Respondent admits, and
I find, that it is an employer engaged in commerce and in
operations affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
It is undisputed, and I find, that Local 1101, Communica-
1 All dates hereafter refer to 1971, unless otherwise noted.
203 NLRB No. 180
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions Workers of America, AFL-CIO (herein called the
Union), is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
1. The 3-day suspension of Boxill
The Charging Party Gladstone A. Boxill, sometimes re-
ferred to in the record as Alex, was hired by the Respondent
on March 9, 1970, to work as a "frameman" in the
Company's central office building at 739 Rockaway Ave-
nue, Brooklyn, New York.' Thereafter, in periodic apprais-
als of Boxill 's job performance after 3, 6, and 9 months of
employment, he was rated by his supervisors as "unsatisfac-
tory" in respect to "productivity," "reliability," and "atti-
tude and conduct." 3 During this period of 9 months, Boxill
frequently was absent from work, and late in reporting to
work, and, as a consequence , he had reached the fourth step
of the Respondent's sixth step "absence control" program!
In addition, When Boxill was "criticized" for his lateness
and absences , he accused management with "putting pres-
sure on him" and with "being racist." S
On February 16, Boxill worked the 4 p.m. to 12 midnight
shift. The frame room employees who work on that shift,
except for a few framemen who remain on the job "for
coverage at all times," have a 15-minute coffeebreak at 6
p.m. On the night in question , Boxill went on his break at
6 p.m. About 6:20 p.m., Boxill's supervisors Salvatore Pri-
sinzano and Joseph O'Connell went to the men 's lounge,
observed that Boxill and two other employees, George
Reeves and Herbert Rock, had not yet returned to work
from their break, and ordered them to go back to work. All
three refused to comply and asserted that they were still on
their break . Instead, they commenced a loud tirade and
argument with Prisinzano and O'Connell about the "double
standard practiced by the Respondent's supervisors in re-
spect to the minimal training given to black employees, the
disparate amount of overtime work permitted to them, and
the absence control plan which assertedly was "unfair."
Despite repeated orders from Prisinzano that they return to
work, Boxill, Reeves, and Rock continued the argument for
about 55 minutes, first in the lounge and then in the hall
outside the frame room . During the course of the argument,
Boxill and his two companions characterized the foremen
and Respondent's management as "racist," and about 30
framemen and employees of other departments, attracted
by the loud shouting, stopped work and came out "in the
hall" to watch and listen . Prisinzano asked these employees
2 The duties of a frameman are to connect and disconnect wires to the
frame , to install new fines on the frame , and on occasion to make repairs to
the frame.
3 See Resp . Exh. 6A, 6B, and 6C.
4 The purpose of this program is to correct poor attendance habits by
employees and to separate from the payroll employees who persist in exces-
sive absenteeism and/or tardiness The program prescribes six successive
steps of inquiry , discussions , and warnings by supervisors which culminate
with a "final warning" at the fifth step, and separation at the sixth. See Resp.
Exh. 7.
3 The quotes above are from Boxill 's "appraisal report" dated December
31, 1970, after 9 months of employment by the Respondent . See Resp. Exh
6-C. Boxill is black . His supervisors all were white.
to go back to work, but they did not go. He also asked Boxill
to get the employees to go back to work, but Boxill refused
to do so. The work stoppage finally ended with a promise
by Prisinzano that he would look into the complaints which
Boxill , Reeves , and Rock had voiced and would try to
straighten them out.'
That same evening , about 8:30 p.m., Prisinzano tele-
phoned his superior, Richard Cioffi, the central office su-
pervisor of the Rockaway Avenue Station, who told him
about "the events that had occurred during the course of the
evening, between the hours of 6:30 and 7:30," and recom-
mended that if disciplinary action was not taken against
Boxill , Reeves, and Rock , "the control of the entire frame
would be in jeopardy." That same night, and on the follow-
ing day, February 17, Boxill's conduct and that of his two
coworkers was discussed by Cioffi with his superior, District
Plant Superintendent Pat Soleo, by the latter with his boss,
Division Plant Superintendent Musillo, and by Musillo with
the Brooklyn area General Plant Manager Bernard C. Sis-
sler. On February 17, before Boxill's, Reeves', and Rock's
scheduled arrival for the 4 p.m. shift, Cioffi received "au-
thorization" to suspend Boxill, Reeves, and Rock for 3 days
for their conduct on February 16. Before doing so, however,
he decided first to talk to each of them individually to
ascertain their version of "as to what had happened the
previous night," and then to suspend them "if it was neces-
sary." To that end, Cioffi left instructions with Supervisor
Prisinzano that after Boxill , Reeves , and Rock signed in,
and "before they started their normal work activity," "they
were to report to my office,-I would like to talk to
them." 7
When Boxill reported to work on February 17 at 4 p.m.,
he was greeted at the sign in register by a group of four or
five supervisors including Foremen Prisinzano and Roald-
sen, and he was told that his next "work assignment" was
in Cioffi's office . Because this was an unusual greeting and
a "very strange" assignment for a frameman , Boxill became
suspicious that the Respondent was "up to something"
which might lead to "disciplinary action," and he accord-
ingly said that he would not go unless he was accompanied
by his union shop steward.8 Prisinzano told him, however,
that he "had to go without a shop steward." Boxill neverthe-
less started to look for Union Steward Philip Insalaco, and
while doing so, he soon learned that Reeves and Rock "had
been given the same assignment," and that they too were
refusing to enter Cioffi's office without a union steward.
The findings above are based on a composite of the testimony of Boxill,
Pnsinzano , and O'Connell which I credit to the extent indicated above. There
was a quite apparent effort by Boxill to minimize this occurrence, and an
equally obvious attempt by the Respondent's counsel and witnesses to exag-
gerate the incident . Thus, despite the complete absence of violence or threats
of any kind by Boxill and his two coworkers, their conduct was characterized
as a "near not" by Division Plant Superintendent James J . Musillo and
General Plant Manager Bernard C. Sissler, and as a "confrontation" by the
Respondent's counsel 's questions and Foreman Pnsinzano 's answers. I place
no credence either in the attempted exaggerations or minimizations.
7 The findings in the preceding paragraph are based on the credited testi-
mony of Pnsinzano, Musillo, Sissler, and Cioffi , which is credited in these
res5pects.
Respondent's framemen have been represented for many years for collec-
tive-bargaining purposes by the Union. The collective-bargaining agreement
between Respondent and the Union then in effect is in evidence as Resp.
Exh. 2.
NEW YORK TELEPHONE CO.
Boxill then located Insalaco, told him about his unusual
assignment, and the two of them went together to Cioffi's
office, but Insalaco was denied entrance by a foreman,9 and
Boxill and Insalaco then returned to the men's lounge. Box-
ill then sent a message to Cioffi through Prisinzano that he,
Reeves , and Rock would be willing to meet with him "as a
group." Prisinzano soon returned and told Boxill, "You
have to go in there by yourself. One at a time ." Boxill
replied, "No. I am not going in there ." A few minutes later,
Prisinzano came over and told Boxill , Reeves , and Rock,
that if they did not go to Cioffi' s office alone and one by
one, they would have to leave the building , and, if they did
not leave the building, the police would be called to eject
them . Faced with these alternatives, Boxill decided to enter
Cioffi's office without union representation . When he did,
Cioffi, contrary to his earlier plans, asked Boxill no ques-
tions about what had happened the previous evening, but
simply read to Boxill a statement whose text had been ap-
proved by the Respondent 's Industrial Relations Depart-
ment earlier that afternoon before Boxill 's 4 p.m arrival at
the central office. The statement read as follows:10
FOR CREATING A DISTURBANCE WHICH LED TO DISRUPTING THE
WORK PATTERN IN THE ROCKAWAY AVE CO. AND BEING AWAY
FROM YOUR ASSIGNED WORK LOCATION FOR APPROXIMATELY I
HOUR AND REFUSING TO RETURN TO YOUR WORK LOCATION
WHEN TOLD TO DO SO BY A FOREMAN YOU ARE HEREBY SUSPEND-
ED FOR THREE DAYS . ANOTHER RECURRENCE OF THIS TYPE
COULD LEAD TO YOUR DISMISSAL FROM THE PAYROLL I I
2. Contentions and conclusions regarding Boxill's
suspension on February 17
The complaint alleges , inter alia, and the General Counsel
contends , that the Respondent violated Section 8(a)(1) of
the Act by compelling Boxill, contrary to his wishes, to go
to Cioffi's office on February 17 for a disciplinary interview
without a union representative . In support of this allegation
and contention , the General Counsel relies on the Board's
decisions in Quality Manufacturing Company I2 and Mobil
Oil Corporation. 13 In Quality Manufacturing, the Board, not-
ing that this was the first case considered by it which "pre-
sented a situation where an employee or his representative
had been disciplined or discharged for requesting , or insist-
ing on , union representation in the course of an inter-
view," 14 concluded that:
it is a serious violation of an employee 's individual right
to be represented by his union if he can only request
or insist on such representation under penalty of disci-
plinary action.
Subsequently , in its most recent Mobil Oil decision, the
9 According to Bo;ill , he and Insalaco entered Cioffi's office but left when
Cioffi ordered Insalaco to get out. However , Cioffi, whom I credit in this
ressect, testified that Insalaco "never got to come into the office."
Resp. Exh. 1.
11 Except as previously noted (see In . 9, supra), the findings in the foregoing
paragraph are based on uncontroverted testimony by Boxill which is credited
in these respects.
12 195 NLRB 197.
" 196 NLRB 1052.
14 All of the prior cases had involved the question of whether the
employer's refusal to allow union representation during such interviews
constituted a refusal to bargain in violation of Sec . 8(a)(5) of the Act.
1155
Board said the following in respect to this issue:
An employee's right to union representation upon
request is based on Section 7 of the Act which guaran-
tees the right of employees to act in concert for "mutual
aid and protection." The denial of this right has a rea-
sonable tendency to interfere with, restrain, and coerce
employees in violation of Section 8(a)(1) of the Act.
Thus, it is a serious violation of the employee's individ-
ual right to engage in concerted activity by seeking the
assistance of his statutory representative if the employ-
er denies the employee's request and compels the em-
ployee to appear unassisted at an interview which may
put his job security in jeopardy. Such a dilution of the
employee's right to act collectively to protect his job
interests is, in our view , unwarranted interference with
his right to insist on concerted protection, rather than
individual self-protection, against possible adverse em-
ployer action.
Notwithstanding these decisions, the Respondent con-
tends that Boxill's Section 7 rights were not transgressed by
the denial of his request for representation by a union stew-
ard during his interview by Central Office Supervisor Cioffi
because: (a) Boxill had no objective reason to expect disci-
plinary action to result from the interview; (b) he was not
compelled to attend the interview; and (c) he was not inter-
viewed when he finally went to Cioffi's office, but instead
was simply notified of a disciplinary action which had been
predetermined before he was summoned. As hereinafter
explicated, the Respondent's contentions are rejected as de-
void of merit."
(a) When Boxill came to work on February 17, and was
greeted by a group of foremen and told by them that his
next assignment was in Cioffi's office, he obviously had
ample cause for believing that something was amiss. As a
frameman, Boxill's work was confined to the frame room,
and he thus obviously knew that the assignment to Cioffi's
office was for reasons other than work. Moreover, in•the
light of the events of the preceding evening, Boxill had
ample cause to believe that this "very strange" assignment
involved at least a possibility, if not a likelihood, of adverse
consequences to his employment status. Thus, contrary to
the Respondent's assertion, Boxill had more than adequate
objective reasons for desiring a union representative to ac-
company him to Cioffi's office, and for refusing to be inter-
viewed without union representation.
(b) It is undisputed that, after Boxill signed in on Febru-
ary 17, he was told by Foreman Prisinzano that his next
work assignment was in Cioffi's office. This was in effect an
order that he was required to go there. When Boxill then
refused to go unless he was accompanied by a union stew-
15 Prior to the Board's issuance of its Quality Manufacturing and Mobil Oil
decisions, and undoubtedly relying on Texaco, Inc., Houston Producing Divi-
sion, 168 NLRB 361, enforcement denied 408 F.2d 142 (C.A. 5, 1969), an
8(a)(5) case, the Respondent had contended in a letter to the Regional Office
dated August 17, 1971 (G.C. Exh 4), that Boxill 's charge against it had no
merit because "the supervisor [Cioffi] essentially had a fact finding purpose
with respect to the interview [for which] Boxill refused to go into the office
unless he was accompanied by a union steward." As indicated above, the
Respondent apparently now has abandoned this contention. In any event, in
the light of Cioffi 's testimony regarding the reasons for which he summoned
Boxill to his office, the contention that the proposed interview had an essen-
tially "fact finding purpose" has no record support or merit
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ard, his request for union representation not only was de-
nied, but he subsequently was given the following alterna-
tive ultimatums : he could either go to Cioffi's office alone,
or go home and thus lose at least that night's work. More-
over, he was threatened with physical ejection by the police
unless he went to Cioffi's office or left the building. Faced
with these alternatives, it is small wonder that Boxill felt
impelled to go to Cioffi's office alone without a union stew-
ard. Under the circumstances I regard the Respondent's
argument ( tr. p. 496) that Boxill was "not compelled" to go
to Cioffi's office, as specious.
(c) The Respondent next contends that it committed no
violation of Boxill's Section 7 rights because when he finally
went to Cioffi's office without a union steward, he was not
interviewed or questioned, but merely notified that he was
suspended for 3 days. However, Cioffi admitted that his
purpose for summoning Boxill to his office was to interview
him regarding the events of the preceding evening. More-
over, as explicated infra, Cioffi's subsequent failure to inter-
view Boxill clearly was motivated by the latter's refusal for
about one-half hour to go to Cioffi's office without repre-
sentation by a union steward. I therefore reject as without
merit the contention that the Respondent did not impinge
on Boxill's Section 7 rights merely because he was not in fact
later interviewed before he was suspended.
Accordingly, inasmuch as the uncontroverted record
clearly discloses that Boxill was threatened with various
"reprisals" which impelled him, contrary to his desires, to
go alone to Cioffi's office without a union steward, I find
that by such threats, the Respondent interfered with, re-
strained, and coerced Boxill in the exercise of his right under
the Act to be represented by the Union, and that it thereby
violated Section 8(axl) thereof."
The complaint in this case also alleges that Boxill's 3-day
suspension was motivated in part by his refusal on February
17 to go to Cioffi's office to be interviewed without union
representation , and that thereby the Respondent violated
Section 8(a)(l) and (3) of the Act. The Respondent contends
that Boxill's 3-day suspension was motivated solely on his
misconduct on the day prior to his suspension, and was not
in any way based on his refusal to go to Cioffi's office.
In this regard, the Respondent argues that inasmuch as
its decision to suspend Boxill for 3 days was made in the
afternoon of February 17 before Boxill came to work, and
the duration of Boxill's suspension period was not later
increased above that which had previously been decided
upon, the 3-day suspension could not have been motivated
in part by Boxill 's later refusal to go to Cioffi's office with-
out a union steward. The fallacy with this argument is that
it mistakenly equates "authorization" with "decision." Ciof-
fi admittedly and uncontrovertably was "authorized" dur-
ing the afternoon of February 17 to suspend Boxill for 3
days for his misconduct the previous evening. That authori-
zation was based on Cioffi's recommendation that Boxill's
conduct on February 16, as reported to him by his subordi-
nate foremen, warranted that discipline. However, insofar
as the record discloses, the authorization did not make it
mandatory upon Cioffi to impose that suspension on Boxill.
16 Quality Manufacturing Company, supra, Mobil Oil Corporation. supra
To the contrary Cioffi's testimony quite clearly discloses
that he had discretion not to impose any discipline at all on
Boxill. In this regard, Cioffi testified that when he initially
asked his subordinate Foreman Prisinzano to send Boxill to
his office on February 17, his purpose was "to talk to [him]
individually, as to what had happened the previous night,"
and, "If, after his [Boxill's] explanation as to what had hap-
pened , did not influence me in any way, I had the authority
to suspend him." I infer therefrom that Cioffi thus also had
authority, if persuaded by Boxill's "explanation," to either
lessen the discipline or to impose none at all. In the light of
that discretion, the fact that the discipline later imposed on
Boxill was the same as that which had previously been
authorized does not establish that its imposition could not
also have been based on Boxill's subsequent refusal to obey
orders and go to Cioffi's office.
I find, contrary to the Respondent's contention, that
Boxill's 3-day suspension was motivated in part by "his
[Boxill 's] refusal to come to my [Cioffi's] office as per my
request earlier on that day [February 17]." 17 My reasons for
so concluding are as follows: As noted above, Cioffi' s initial
purpose for requiring Boxill 's presence in his office on Feb-
ruary 17 was to interview him regarding the events of the
night before, and to administer a discipline unless Boxill
could persuade him to the contrary. To this end, Cioffi
instructed Foreman Prisinzano to tell Boxill that, "I would
like to talk to [him]." According to Cioffi, after Boxill re-
fused to come to his office without a union steward, he
conferred with his superior Pat Soleo, the Respondent's
district plant superintendent, and upon the latter's sugges-
tion, he thrice issued instructions to Boxill through Fore-
man Prinsinzano "that [Boxill' s] next assignment was in my
office." Cioffi admittedly had no work for Boxill to do in
his office. And, when Boxill still persisted in his refusal to
go to Cioffi's office without a union steward, the latter then
decided, after further consultation with Soleo, that "we were
going ahead with the suspension" which had been previous-
ly "authorized." It is thus quite apparent, and I find, that
Cioffi's later failure to interrogate Boxill, and his announce-
ment of Boxill's suspension without first ascertaining his
version of the previous night's events, quite obviously were
motivated in part by Boxill's refusals , before the
Respondent's threats, to go to Cioffi's office without a
union steward. I note that my conclusion above accords
with Cioffi's admission in his affidavit to the Board agent,
"I was authorized to suspend him [Boxill] because of his
actions on the previous day and his refusal to come into my
office as per my request earlier on that day [February
17]." 18
Accordingly, inasmuch as Boxill's 3-day suspension was
motivated in part by his refusal to go to Cioffi's office alone
without a union steward, the Respondent thereby further
interfered with, restrained and coerced Boxill in his right
under the Act to be represented by the Union, and thus
further violated Section 8(a)(1) of the Act.19
17 The quotation above is from Cioffi' s affidavit sworn to before a Board
agent on June 30, 1971 (G C Exh 2, p. 9)
18 At the hearing in this case , Cioffi testified that the statement in his
affidavit quoted above was "not true" but I place no credence in his disavow-
al thereof
191 deem it unnecessary to determine whether Boxill's suspension also
NEW YORK TELEPHONE CO.
3. Boxill 's discharge on April 15
Boxill returned to work after his 3-day suspension, and
for almost 3 weeks his record of attendance and promptness
in reporting to work was perfect. On March 12, however, he
came to work 2-1/2 hours late, on March 16, 4-1/2 hours
late, and on March 19, 2-1/2 hours late. Accordingly, on
March 22, Boxill was called into the supervisor's office, and
in the presence of Union Shop Steward Frank Gallin, he
was placed by Foreman Prisinzano in the fifth step of the
Respondent's Absence Control Plan and given a "Final
Warning" that his attendance was still unsatisfactory, and
"that his very next absence could lead to separation from
the payroll." 20 After being placed on final warning on
March 22, Boxill again was absent on March 29, and 10
minutes late on April 12, but no action was taken against
him.
On April 14, Boxill was scheduled to work on the 4 p.m.
to 12 midnight shift, but he did not appear at the sign in
register in the frame room until 7:30 p.m., and when he did,
he was accompanied by his young 4-year-old son, and he
was not wearing his tools. Boxill signed the register and
noted 7 p.m. as his arrival time21 Foreman O'Connell, the
frame room supervisor, told Boxill that the child could not
stay in the frame room, and that Boxill would not be on paid
time until he appeared on the job with his tools ready for
work. Boxill replied that he had no place to leave his son,
and that he was waiting for his wife to pick up the boy.
O'Connell repeated that the boy had to leave the frame
room, and that Boxill would not be paid until he was ready
for work. Boxill responded that he had been in the building
since 7 o'clock and that he intended to get paid from that
time. Boxill also said that O'Connell was white and he was
black, and that was why "this was happening" to Boxill. At
about 7:50 p.m. Boxill said he was going to supper, and that
he wanted to get paid for his supper period. He then left the
frame room with his son. About 8:30 p.m., O'Connell and
Foreman Michael J. Maillie went to the men's lounge,
violated Sec . 8(aX3), as such additional finding would not affect any remedial
order . See Quality Manufacturing, supra, fn 6
20 Boxill's Absence and Tardiness Record (Resp Exh. 8 ) According to
Boxill, Prisinzano told him on this occasion that he was being advanced to
the fifth step and "final warning" phase of the Absence Control Plan because
of his 3-day suspension which "counted as absences " against him under the
plan Pnsmzano denied making any such statement to Boxill I credit
Prisinzano 's denial because I regard his testimony as generally reliable, and
because the documentary evidence in the record supports his testimony in
this regard . Thus, the entry on Boxill's absence record for the 3-day period
of his suspension is circled in red , which, according to the absence control
plan (Resp . Exh. 7), signifies that it is an "excused absence " and thus is not
counted under the plan . I note , moreover, that at the end of the entry for
Boxill 's 3-day suspension , Prisinzano also made a notation "(for record pur-
poses only) " I therefore credit Prisinzano 's testimony that he did not tell
Boxill that his 3 -day suspension was a factor in his advancement to the fifth
step of the absence control plan . However, I place no credence in Foreman
Roaldsen 's testimony that Prisinzano specifically told Boxill that the 3-day
suspension was not counted. I base this conclusion on the absence of any
reference thereto in Respondent 's voluminous and detailed record of Boxill's
absences , latenesses , and excuses , and because Roaldsen 's testimony in this
regard does not accord with that of Prisinzano, whom I credit
Resp . Exh. 4, the register for April 14. Boxill identified his signature on
this exhibit and admitted that the notation "7.00" was in his handwriting He
nevertheless denied that this was the register sheet he signed that night I
place no credence in this denial
1157
where they encountered Boxill who no longer was accompa-
nied by his son. O'Connell asked Boxill whether he intended
to come to work, and told him that unless Boxill did so
within the next 10 minutes, there would be no work for him
the rest of the evening and he could go home. Boxill replied
"that he would be in to work when he felt like it," and that
he still intended to get paid from 7 p.m. on. O'Connell and
Maillie then returned to the frame room. At 8:45 p.m., they
again went to the lounge, observed Boxill on the telephone,
and waited for him to conclude his conversation. When he
did, O'Connell told Boxill that there would be no work for
him that night. Boxill replied that he had more experience
in the business than the two foremen, and that he didn't
need the job. O'Connell and Maillie again returned to the
frame room. At 9:15 p.m., Boxill appeared in the frame
room with his tools on and said he was ready to go to work.
O'Connell told him there was no work for him, and that he
should leave the building. Boxill asked to talk to someone
higher up in the Respondent's management hierarchy, and
O'Connell said that nobody was available. Boxill then left
the frame room. 22
Later that same evening between 9:45 and 10 p. m., Boxill
came to the office of Foreman William Olson, the supervi-
sor of the Respondent's repair service bureau at the Rocka-
way Avenue central office, and complained to Olson that
O'Connell would not let him work. Boxill asked Olson to
talk to O'Connell on his behalf. Olson replied that he could
do nothing to help Boxill because he was a frameman and
Olson's jurisdiction was limited to "testers." Boxill re-
sponded, "You are just like the rest of them. You're white.
I'm black." Olson repeated that he could not help Boxill,
and he asked Boxill to leave his office. Boxill refused to
leave and shouted a repetition of his accusation that Olson's
refusal was motivated by racist considerations. Olson
threatened to call the police to eject him if Boxill did not
leave his office. Boxill replied, "Well, if you make that call,
it will be the last fucking call you will ever make." Olson
nevertheless called the police, and Boxill said, "Don't for-
get, you have to work in this building. You have to leave [it]
at night." He then left Olson's office. When the police ar-
rived about a half hour later, they refused to remove Boxill
from the building unless formal charges were pressed
against him . O'Connell then consulted with his superior,
Cioffi, by telephone and was instructed not to lodge any
charges with the police. Boxill left the building voluntarily
shortly therafter. Later that night, when O'Connell and Ol-
son left the building, they asked for and received a police
escort 23
The following day April 15, when Boxill reported to work,
he was called into Foreman Prisinzano's office, and the
latter read to him a statement which had been prepared
earlier that day, to the following effect: 24
Mr. Boxill, you were placed on final warning for
lateness and attendance on 3/22/71, and on final warn-
ing for insubordination on 2/17/71. Because of your
22 The findings above are based on a composite of the testimony of O'Con-
nell and Maillie which was not controverted by Boxill and is credited in these
ressects
The findings above are based on Olson's testimony which was not con-
troverted by Boxill and is credited
2° ALJ Exh I
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lateness last night, April 14, and your subsequent in-
subordination you are hereby suspended 10 days pend-
ing dismissal, effective immediately.
Signed S . Prisinzano
Title C.O. Supervisor
On April 25, the Respondent formally terminated Boxill's
employment, and it has not since reinstated him.
4. Contentions and conclusions regarding
Boxill's discharge
The complaint alleges and the General Counsel contends
that Boxill's suspension on April 15 and subsequent dis-
charge violated Section 8(aX3) and (1) of the Act "because
[they were] grounded, at least in part, upon Boxill 's demand
for union representation on February 17." 23 The General
Counsel's argument in support of this alleged violation may
be summarized briefly as follows : (a) The 3-day suspension
meted out to Boxill on February 17, and his placement on
that date on "final warning" for insubordination, were
based in part upon his refusal to enter Cioffi's office without
union representation ; (b) Boxill's absence from work during
the 3-day suspension was counted and caused Boxill to be
placed by the Respondent on March 22 in the fifth step and
"final warning" phase of the absence control plan ; (c) ergo,
inasmuch as Boxill 's April 15 suspension and subsequent
discharge were based , inter alia, on his final warning for
insubordination on February 17 and his final warning for
absence and lateness on March 22, "the April suspension
... and subsequent dismissal are tainted and violate sec-
tions 8(aX3) and (1)." 26
I find no merit in this legalistic assessment of the motiva-
tions for Boxill 's discharge . It assumes that Boxill 's termina-
tion in April was in part motivated by his February 17
refusal to go to Cioffi's office without a union steward. It
assumes further that but for Boxill's insistence on union
representation on February 17, and the Respondent's un-
lawful denial thereof at that time, Boxill would not have
been terminated for his misconduct on April 14.27 There is,
however, no substantial or probative evidence to support
either assumption . The uncontroverted testimony clearly
discloses that on April 14, Boxill not only was insubordinate
and insolent to his supervisors, but also that he threatened
the life of another supervisor . There is no evidence that any
rule existed which precluded the Respondent from firing an
employee for insubordination unless he previously had been
given a final warning that a recurrence would lead to his
discharge . Regardless of prior warning, the Respondent ob-
viously was not required to retain in its employ a person
who engaged in the type of misbehavior which Boxill en-
gaged in on April 14. Moreover, Boxill's atrocious record of
attendance and tardiness also reasonably warranted his dis-
charge on that ground .28
23 G.C. Br., p. 6.
26 Id. p. 7.
27Cf. IXL Manufacturing Company, Inc, 193 NLRB 780
38 The Respondent 's record of Boxill's attendance (Resp . Exh 8) discloses
I conclude from the foregoing that the General Counsel
has not established by competent or probative testimony
that Boxill's termination in April was motivated either in
whole or in part by his insistence in February on union
representation, and I therefore recommend dismissal of the
complaint in this respect.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I will recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act 29
Upon the basis of the foregoing findings of fact and upon
the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. Respondent, New York Telephone Company, is an
employer engaged in commerce and in operations affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Local 1101, Communications Workers of America,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By threatening Gladstone A. Boxill with various repri-
sals to compel his attendance at a disciplinary interview
without union representation, and by suspending his em-
ployment for 3 days, inter alia, because of his refusal to be
interviewed without such representation, the Respondent
has interfered with, restrained, and coerced employees in
the exercise of rights guaranteed by Section 7 of the Act,
and thereby has engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and con-
clusions of law, and upon the entire record in this case, I
that in the period of 13 months that Boxill worked for the Respondent, he
was absent for a total of 22-1/2 days and was late on 40 occasions . As found
above (see fn 20, supra ) Boxill's 3-day suspension was not counted by the
Resondent in placing him on final warning for absences and latenesses.
25 Having found that Respondent suspended the employment of Glad-
stone A. Boxill for 3 days, inter aha, because he had insisted on representation
by the Union, I ordinarily would recommend that he be reimbursed for any
loss of earnings he suffered thereby. However , the General Counsel does not
seek backpay for the suspension period because Boxill was made whole
therefor by the Union in connection with the settlement of a related charge
by Boxill against the Union. Accordingly, my proposed order makes no
provision for reimbursement.
NEW YORK TELEPHONE CO.
hereby issue the following recommended:
ORDER"
Respondent, New York Telephone Company, its officers,
agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Requiring, by threats of discipline or otherwise, that
any employee take part in an interview or meeting with it
without union representation, if such representation has
been requested by the employee and if the employee has
reasonable grounds to believe that the matters to be dis-
cussed may result in subjecting him to disciplinary action.
(b) Disciplining any employee for refusing to take part
without representation by a labor organization in any inter-
view or meeting with it where the employee has reasonable
grounds to believe that the matters to be discussed may
result in subjecting him to disciplinary action.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Post at its Central Office at 739 Rockaway Avenue,
Brooklyn, New York, copies of the attached notice marked
"Appendix." 31 Copies of said notice, on forms provided by
the Regional Director for Region 29, after being duly signed
by Respondent, shall be posted by it for a period of 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or cov-
ered by any other material.
(b) Notify the Regional Director for Region 29, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
I FURTHER ORDER that the complaint herein be dismissed
insofar as it alleges violations of the Act other than those
found above.
70 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec. 102 48
of the Rules and Regulation herein shall, as provided in Sec. 102 48 of the
Rules and Regulations , automatically become the findings , conclusions, de-
cision and Order of the Board , and all objections thereto shall be deemed
waived for all purposes.
31 In the event that the Board 's 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
1159
After a trial at which all sides had the opportunity to present
their evidence, the National Labor Relations Board has
found that we violated the National Labor Relations Act,
and has ordered us to post this notice and we intend to carry
out the Order of the Board.
WE WILL NOT require, by threats of discipline or other-
wise, that any employee take part in an interview or
meeting with us without union representation if the
employee requests such representation and if the em-
ployee has reasonable grounds to believe that the mat-
ters to be discussed may result in subjecting him to
disciplinary action.
WE WILL NOT discipline any employee for refusing to
take part without union representation in any interview
or meeting with us, where the employee has reasonable
grounds to believe that the matters to be discussed may
result in subjecting him to disciplinary action.
NEW YORK TELEPHONE
COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, 16 Court Street, 4th Floor, Brook-
lyn, New York 11241, Telephone 212-596-3535.