Pacific Southwest Airlines, Inc.

National Labor Relations Board - Board Decisions

Jun 14, 1979

242 N.L.R.B. 1169 (N.L.R.B. 1979)

PACIFIC SOUTHWEST AIRLINES. INC.
Pacific Southwest Airlines, Inc. and Airline. Aero-
space and Allied Employees Local Union No. 2707,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America. Case 32-CA-353
June 14. 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PNL .I.O
AND TRUESDAI.E
On October 17, 1978, Administrative Law Judge
Robert B. Holmes issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief and Respondent filed
exceptions and a supporting brief.'
Pursuant to the provisions of' Section 3(b) of the
National l.abor 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 as
modified herein.
The complaint alleges that Respondent violated
Section 8(a)(3) of the Act by discharging employees
Keith Ingalls and Michael Sharpe and Section 8(a)(1)
of the Act by refusing to permit a union steward to be
present during a telephone interview with the two em-
ployees. We agree with the Administrative Law Judge
that the 8(a)(3) allegations should be deferred to arbi-
tration under the Spielberg principles. 2 Contrary to
the Administrative Law Judge, however, we would
also defer the 8(a)(1) allegations to the arbitrator's
award.
The facts, as outlined below, are fully set forth in
the Administrative Law Judge's Decision and the ar-
bitration award attached thereto [omitted from publi-
cation]. At the hearing herein the parties stipulated
that the factual findings of the arbitrator as set forth
in the award would be binding on the parties and
would constitute the factual basis for the 8(a)(3) alle-
gations. Ingalls and Sharpe were among the witnesses
to an on-the-job drinking incident which occurred in
June 1977. On the basis of its interviews with Ingalls,
Sharpe, and Gary Greene,' Respondent discharged
the two employees involved in the incident. At a
iRespondent has requested oral argument. This request is hereb) denied
as the record. the exceptions, and the briefs adequatel\ present the issues and
positions of the parties.
2 Spielberg Munufaturing Compan', 112 N L R B 1080 ( 1955).
Greene was not a subject of this preeding or of the arhitratlon proceed-
ing.
meeting to settle the grievance involving the incident.
the Union, which had talked to the witnesses, stated
that Respondent had acted on incorrect information
and that it had witnesses, including Ingalls and
Sharpe. who would testifs that Respondent had pre-
viously condoned such conduct.
On August 23. 1977, the day before the scheduled
arbitration hearing on the drinking incident dis-
charges. Respondent's attorney sought to interview
Ingalls and Sharpe (and Greene) to prepare for arbi-
tration and to review Respondent's position. Ingalls
was the first to be called, and at his request a steward
was present. Respondent asked him about the drink-
ing incident. After considerable discussion including
phone calls to the union office and with the approval
of the steward. Ingalls said he was instructed not to
answer the questions. Respondent told Ingalls that if
he persisted in his refusal he could be discharged. In-
galls refused and was suspended. Sharpe, who was
later summoned, also refused to be interviewed and
was suspended.
The next day. August 24, 1977, Ingalls and Sharpe
went to the office to turn in their passes and identifi-
cation papers and were told that the station manager
wanted to see them. Ingalls. who was first, requested
a steward and was refused. Respondent's operations
director was on the phone and asked Ingalls if he now
wanted to answer the questions. Ingalls replied that
his answer was the same. Sharpe was summoned, re-
quested a steward, and was refused. The operations
manager asked Sharpe if he had changed his mind.
and Sharpe said he could not give an answer at that
time. Immediately afterwards. Sharpe and then In-
galls went to the station manager's office where. at
Respondent's request, a steward was present. The sta-
tion manager expressed regret at what he had to do.
gave each an opportunity to change his mind, and
terminated them.
Ingalls and Sharpe filed grievances which the
Union pursued through arbitration. The arbitration
opinion and award, appended to the Administrative
Law Judge's Decision, concluded:
The Award is that the Company violated the
Agreement when it terminated Keith Ingalls and
Michael Sharpe on August 24, 1977. It shall rein-
state them within twenty-four (24) hours of its
receipt of this Award without loss of seniority or
other benefits, but without any retroactive com-
pensation.
In brief. the arbitrator found that Respondent was
acting within its rights in attempting to interview In-
galls and Sharpe. that Ingalls and Sharpe should have
submitted to the interviews. but that because Ingalls
and Sharpe "got caught in the middle of a struggle
between two organizations" their discharges shall be
converted to suspensions.
242 NLRB No. 151
1169
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has long held that it will defer to an
arbitration award where the proceedings appear to
have been fair and regular, all parties have agreed to
be bound, and the decision of the arbitrator is not
clearly repugnant to the purposes and policies of the
Act. (Spielberg, supra at 1082.) The General Counsel
contends that the award is clearly repugnant to the
Act, basically because, in his view, Respondent was
attempting to interfere with those who sided against it
in the processing of grievances, to retaliate against
employees for their apparent desire to testify favor-
ably to their fellow employees, and to improperly dis-
cover what the testimony favorable to the Union
would be.
A close look at the award shows that the findings of
the arbitrator support his conclusions and demon-
strates that he considered and rejected the conten-
tions of the General Counsel. The arbitrator found
that Ingalls and Sharpe (and Greene) were the wit-
nesses to the drinking incident whose interviews had
been the basis of Respondent's action to the incident;
that, as an almost routine practice, a party to arbitra-
tion interviews its witnesses in preparation for the
hearing to permit, as here, its attorney to view the
evidence first hand and to assess the evidence in light
of a possible settlement; that Respondent sought to
question on-duty employee witnesses about the con-
duct of other on-duty employees during the drinking
incident; and that therefore Respondent had the right
to expect good-faith cooperation. The arbitrator also
found that Respondent did not seek disclosure of
what Ingalls and Sharpe would testify to at the hear-
ing or the details of the Union's position; that Re-
spondent did not go beyond legitimate inquiry into
job-related conduct; that the interviews were not co-
ercive;4 and therefore Respondent did not wrongfully
intrude upon or interfere with the grievance proce-
dure. For the above reasons and those set forth in
detail by the Administrative Law Judge, we find that
the arbitration award with respect to the suspensions
of Ingalls and Sharpe is not repugnant to the pur-
poses and policies of the Act and fully meets the
Spielberg standards for deferral. Accordingly, we
adopt the Administrative Law Judge's dismissal of
this allegation of the complaint.
The Administrative Law Judge did not defer the
independent 8(a)(1) allegations of the complaint to
the arbitration decision; instead he found that Re-
spondent's telephone conversations with Ingalls and
Sharpe, which were conducted without the presence
4 We agree with the Administrative Law Judge that the General Counsel's
reference to Johnnie's Poulry Co.. 146 NLRB 770 (1964), is not relevant
here. That case set out safeguards that an employer must observe in ques-
tioning employees with regard to verification ofa union's majority status and
preparation of a defense to an unfair labor practice charge. That case does
not apply to all employer interviews of employees and does not apply here.
of a union representative as requested by Ingalls and
Sharpe, violated the Act under the principles expli-
cated in N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251
(1975). We do not agree. In our opinion the arbitra-
tor's discussion of both the contractual and statutory
issues and his resolution of the matter meets the Spiel-
berg standards for deferral.5
A steward was present on August 23 when Respon-
dent sought to question Ingalls and Sharpe and on
August 24 when Ingalls and Sharpe were fired. The
only time a steward was refused was during the tele-
phone conversations in which Respondent, in essence,
asked each employee if he had changed his mind. In
discussing Respondent's refusal, the arbitrator stated:
The Union urged that the failure of the Com-
pany to allow Union representation during the
August 24 telephone conversations should invali-
date the Company's actions. It's true that the
Company should have allowed representation on
August 24 in those talks because obviously the
prospect of discipline was a central reality de-
spite the ingenuous statement of the station man-
ager that this was not so. The two were dis-
charged immediately following them. This
contractual obligation of representation is rou-
tine in this type of situation. It remains so even
though its allowance on August 23 had had dis-
mal consequences. If the Company had withheld
that right of representation on August 23, had
pursued the questioning it did, and then had dis-
charged these employees, as here, they would in
all likelihood have been reinstated in this pro-
ceeding.
But in this August 24 telephone situation, all
that the two employees did was to repeat their
insistance-mistakenly-on a right not to re-
spond which they had formulated and persisted
in the day before while given not only the pres-
ence of Union representation but also periodic
opportunities to bolster that representation by
telephone calls to the Union. So, although the
failure of the station manager to allow the pres-
ence of a Union representative in a disciplinary
setting did violate the Agreement-and quite
possibly the statute, as interpreted in NLRB v.
Weingarten, Inc., 420 U.S. 251 (1975)-the viola-
tion in this context was not a material one and
should be given no significance in this proceed-
ing. In no way did it disadvantage these two em-
ployees. Indeed, had the presence of a Union
Chairman Fanning would affirm the Administrative Law Judge on this
issue and would issue the remedial order the Administrative Law Judge
recommended.
170
PACIFIC SOUTHWEST AIRLINES, INC
representative been afforded in these August 24
telephone conversations it is quite evident that
their tenor and result, at least as to these two of
the three employees involved, would clearly not
have changed what was said by them.
In sum, the arbitrator found that although Respon-
dent's refusal to permit the presence of a steward was
improper, the violation was not material and does not
invalidate Respondent's action.
In consideration of all the circumstances, we find
that the arbitration award with respect to the Wein-
garten issue is not clearly repugnant to the Act. In
doing so, we do not condone Respondent's refusal of
union representation, and we neither approve the ar-
bitrator's nor reject the Administrative Law Judge's
analysis of Weingarten. Instead we find that the arbi-
tration award does not do substantial violence to the
Weingarten principles6 or to the purposes and policies
of the Act and is therefore not clearly repugnant un-
der the Spielberg standards. Accordingly, we shall
also dismiss his aspect of the complaint and, thus. the
complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the complaint herein
be, and it hereby is, dismissed in its entirety.
6
In this connection we note that the Administrative Law Judge stated that
the arbitrator's position "has a great deal of logic behind it."
DECISION
ROGER B. HOLMES, Administrative Law Judge: The un-
fair labor practice charge in this proceeding was filed on
August 29, 1977, by Airline, Aerospace and Allied Employ-
ees Local Union No. 2707, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, herein called the Union.
The charge was initially filed with Region 21 of the Na-
tional Labor Relations Board, herein called the Board, and
the charge was initially docketed as Case 21-CA-15992.
(See G.C. Exh. I(a).) On August 31, 1977, the General
Counsel of the Board issued an order transferring the case
from Region 21 to Region 20. (See G.C. Exh. I(d).) The
charge was then redesigned as Case 20-CA-13335. There-
after, the Board established a new Region 32 to render ser-
vice to a portion of the geographic area formerly handled
by Region 20. At that point in time, the charge was again
redesignated as Case 32-CA 353.
On October 20, 1977, the Regional Director for Region
32 advised the parties by letter that he was deferring action
on the investigation of the unfair labor practice charge
pending the completion of the arbitration proceedings in
accordance with the policy of the Board enunciated in
Dubo Manufacturing Corporation. 142 NLRB 431 (1963).
(See G.C. Exh. 2.)
Thereafter, the Regional Director for Region 32 issued
on May 25, 1978. a complaint and notice of hearing against
Pacific Southwest Airlines, Inc.. herein called the Respon-
dent. The General Counsel's complaint alleges that the Re-
spondent has engaged in unfair labor practices within the
meaning of Section 8(a){1) and (3) of the National Labor
Relations Act, as amended, herein called the Act. The Re-
spondent filed an answer to the complaint, and at the hear-
ing the Respondent also filed an amended answer to the
complaint. The Respondent denied the commission of the
alleged unfair labor practices and raised certain affirmative
defenses. (See Resp. Exh. I.)
The hearing in this proceeding was held before me on
August 8, 1978, at San Jose, California. Both counsel for
the General Counsel and the attorneys for the Respondent
timely filed persuasive briefs by the due date of September
25, 1978.
FINDINGS OF FACT
I. JURISDICTION
The Respondent has been, at all times material herein, a
California corporation with an office and principal place of
business located in San Diego, California. The Respondent
has a facility located in San Jose, California, where it is
engaged in the airline transportation of passengers within
the State of California.
During the 12 months preceding the issuance of the com-
plaint, the Respondent. in the course and conduct of its
business operations, derived gross revenue in excess of
$500,000, and during the same period of time, the Respon-
dent purchased and received goods or services valued in
excess of $5,000 which had originated outside the State of
California.
Upon the foregoing facts, and upon the entire record in
this proceeding, I find that the Respondent has been, at all
times material herein, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVEI)
It was admitted in the pleadings that the Union has been,
at all times material herein, a labor organization within the
meaning of Section 2(5) of the Act. Accordingly, I find that
fact to be so.
111. THE ALLEGED UNFAIR LABOR PRA(TICES
A. The Witnesses
In alphabetical order, the following six persons testified
at the hearing in this proceeding:
David Owen Bernier is the director of operations for the
Respondent. He began his employment with the Respon-
dent in 1969 as a passenger service agent. He held the posi-
tions of station supervisor in San Francisco, California;
sales representative; assistant station manager: station
manager at Burbank. California; director of southern sta-
1171
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions; and then his present position with the Respondent for
approximately 1-1/2 years at the time of the hearing.
Fred Peter Coors is an air freight agent for the Respon-
dent at its San Jose, California, facility. He has held that
position since June 1978. Previously, from 1974 to June
1978, Coors was a ramp service agent. In addition, Coors
has served as the union steward on the afternoon shift at
the San Jose facility.
Russell Keith Ingalls is a passenger service agent for the
Respondent at the San Jose Municipal Airport. He was
initially hired by the Respondent in August 1968. Ingalls is
one of the two alleged discriminatees in this proceeding. He
was terminated by the Respondent on August 24, 1977. He
was reinstated by the Respondent on or about December
29, 1977, but without backpay.
Ronald R. Segers was not employed by the Respondent at
the time of the hearing. Segers was formerly the assistant
station manager at the Respondent's San Jose facility, and
Segers held that position in August 1977.
Michael Lee Sharpe is a passenger service agent for the
Respondent at the San Jose Municipal Airport. He was
originally employed by the Respondent on March 4, 1970.
Sharpe is one of the two alleged discriminatees in this pro-
ceeding. Sharpe was also terminated on August 24, 1977.
He was reinstated by the Respondent on or about Decem-
ber 29, 1977, but without backpay.
Richard Volzing was not employed by the Respondent at
the time of the hearing. Volzing formerly held the position
of station manager at the Respondent's San Jose facility,
and Volzing occupied that position in August 1977.
B. The Stipulations
As Joint Exhibit 1, the parties introduced a copy of the
opinion and award of Arbitrator Edgar A. Jones, Jr. The
document is 19 pages long and is typewritten single-spaced.
The hearing before the arbitrator was held on October 13
and 14, 1977; Arbitrator Jones issued his opinion and
award on December 29, 1977. Arbitrator Jones concluded:
The Award is that the Company violated the Agree-
ment when it terminated Keith Ingalls and Michael
Sharpe on August 24, 1977. It shall reinstate them
within twenty-four (24) hours of its receipt of this
Award without loss of seniority or other benefits, but
without any retroactive compensation.
The parties stipulated that the factual findings of Arbi-
trator Jones, as set forth in his opinion and award, which
relate to the occurrences on August 23, 1977, would be
binding upon the parties in this proceeding. The parties
stipulated that they would offer additional testimony at the
hearing in this case only as to occurrences on August 24,
1977. However, the arbitrator's findings from the entire rec-
ord of the events on August 23, 1977.
The parties further stipulated that they were not contest-
ing the fact that a statutory issue relating to the validity of
the Respondent's questioning of employees was the subject
of a Dubo deferral by the Regional Director for Region 32.
Evidence had been presented on that matter; the Respon-
dent had argued and briefed the matter, and the arbitrator
had considered that subject. The parties stipulated that the
sole ground for the refusal to defer to the arbitration award
is the General Counsel's contention that the award failed to
satisfy the requirements of the Board's Decision in Spiel-
berg Manufacturing Company, 112 NLRB 1080 (1955), in
that the General Counsel contends that the award is repug-
nant to the purposes and policies of the Act.
In view of the foregoing, and the importance and signif-
icance of the opinion and award of Arbitrator Jones, I have
attached that document as Appendix A [omitted from pub-
lication]. In accordance with the stipulation of the parties
referred to above, I hereby adopt in this proceeding the
factual findings set forth by Arbitrator Jones in his opinion
and award.
C. The Events on August 24, 1977
As noted in the previous section of this Decision, the
pertinent facts relating to the occurrences on August 23,
1977, are contained in Appendix A. We turn now to the
events which happened on the following day. While there
are some findings of fact related in Appendix A regarding
the events on August 24, 1977, the occurrences on that day
were the subject of the testimony of the six witnesses who
testified in this proceeding.
As to what occurred on August 24, 1977, I shall rely on
the testimony given at the hearing in this proceeding by
Ingalls and Sharpe. Although I have read and considered
the testimony of the other four witnesses. I was persuaded
that Ingalls and Sharpe were relating accurately and reli-
ably the events which occurred on that day. Considering
their demeanor on the witness stand and the criteria set
forth by the Board in Northridge Knitting Mills, Inc., 223
NLRB 230, 235 (1976), I have credited their versions of
these events.
There were some variations among the accounts which
were given by the other four witnesses. While some of those
variations may be considered to be minor points, I was not
convinced that they had better recollections of these events
than did Ingalls and Sharpe who appeared to be credible
witnesses. Consequently, I have based the findings of fact in
this section on the testimony given by Ingalls and Sharpe
whose versions have been accepted and credited.
I. Ingalls and Sharpe return to the Respondent's facility
About 2 p.m. on August 24, 1977, Ingalls and Sharpe
returned to the Respondent's facility in order to turn in
their identification papers and "silver passes," which entitle
an employee with more than 5 years of company service to
receive transportation on PSA without cost to the em-
ployee. Ingalls explained that he thought that he had been
terminated the previous day following his late afternoon
conversations with Director of Operations Bernier. Sharpe
shared a similar opinion. He testified, "My understanding
was that I had been fired August 23rd."
Ingalls and Sharpe gave their identification papers and
"silver passes" to Mickey Reynolds, who was an employee
of the Respondent and also an alternate shop steward. This
took place at the airfreight building. Reynolds then got into
an airfreight van and departed toward the area where the
station manager's office is located.
About 15 minutes later, Reynolds returned to the air-
freight building and told Ingalls and Sharpe that Station
172
PACIFIC SOUTHWEST AIRL.INES, INC.
Manager Volzing wanted them to hand in their identifica-
tion papers and passes to him, and that Volzing wanted to
talk with them. Therefore, about 2:30 or 3 p.m., Ingalls and
Sharpe got into an airfreight van with Reynolds and drove
to the station manager's office, which was approximately
one-quarter of a mile away.
Ingalls and Sharpe walked into the office with Reynolds
following behind them. Volzing came out and asked Ingalls
and Sharpe which one of them wanted to be first. Ingalls
spoke up and said that he would. At that point Ingalls
asked Volzing if he could have a shop steward present. Vol-
zing replied that he did not want any shop steward in the
office.
Sharpe then left the office and looked for Gary Green.
whom Sharpe had observed in the office with Volzing at the
time that Sharpe and Ingalls arrived at the operations of-
fice. Sharpe found Green at the counter about 200 yards
from the operations office. Sharpe asked Greene what was
going on, but Green would not talk to him.
2. The telephone conversation between Ingalls and
Bernier
Ingalls went into Volzing's office and Volzing closed the
door. Volzing informed Ingalls that Bernier was on the tele-
phone, and that he would like to talk to Ingalls.
Ingalls said that the telephone receiver was lying on the
desk, so he picked it up. Bernier introduced himself and
told Ingalls that he would give him another chance, if In-
galls wanted to answer the questions. Bernier stated that he
would make arrangements for Ingalls to come down to San
Diego, and Ingalls could answer the questions there.
Ingalls replied that his answer would be the same; that he
would be glad to answer any other questions the next day at
the arbitration hearing, but as far as answering questions
before that as to what his testimony was going to be, Ingalls
was going to have to decline to do that.
Bernier said that he regretted that Ingalls still felt the
same way, and that Ingalls left him with no other alterna-
tive, if Ingalls still refused to answer the questions which
Bernier wanted to pose to him. Bernier then asked that
Ingalls put Volzing back on the telephone. Ingalls said that
Bernier did not tell him what the alternative would be.
During the conversation between Ingalls and Bernier,
Volzing was listening on the extension-telephone in the of-
fice. Volzing next instructed his secretary, Ms. Jewel, to
take Ingalls to the office of Assistant Station Manager Se-
gers.
Ingalls and Jewel then went to Seger's office where Jewel
waited with Ingalls for about 20 minutes.
3. The telephone conversation between Sharpe and
Bernier
Sharpe heared his name being paged over the intercom,
so he went to the operations office. Volzing asked Sharpe to
go into his office. Sharpe asked for a shop steward to be
present. Volzing replied, "We're not going to have any of
those in here today."
In the office Volzing shut the door and told Sharpe that
Bernier would like to talk to Sharpe on the telephone.
Sharpe sat down at Volzing's desk and picked up the tele-
phone. Volzing picked up the extension telephone from the
secretary's office and listened during the conversation be-
tween Sharpe and Bernier.
Bernier asked Sharpe how he was, and Sharpe replied
that he had not slept very well. Bernier then said that he did
not sleep too well either.
Bernier next asked Sharpe if he would like to change his
mind and answer the questions which they had put to him
the day before. or the questions that they had wanted to put
to Sharpe the day before.
Sharpe stated that he would like to talk to a union repre-
sentative first. Bernier responded that Sharpe had had 24
hours to do that, and Bernier would like his answer now.
Sharpe said that he could not give Bernier an answer now.
Bernier stated, "So you're noncommittal." Sharpe agreed
and said the Bernier could call it that. Bernier then stated
that he was going to take Sharpe's noncommittal answer as
a "no." Sharpe replied, "It's not a no. It's noncommittal."
Bernier responded that it was a "no" to him. Sharpe said.
"You can take it that way if you want." Sharpe said that it
had been nice talking to him, and then he hung up the
telephone.
Volzing remained on the telephone extension for a few
minutes and then hung up the extension telephone.
4. The final conversation in which Sharpe is terminated
Volzing called Sharpe back into his office, and Volzing
also called in a secretary and Shop Steward Fred Coors.
Volzing told Sharpe that he had to terminate him. Vol-
zing asked the secretary to type up the necessary forms. She
then left the office.
While the secretary was preparing the papers. Volzing
told Sharpe that he regretted that he had to do this. Then
they discussed an earlier incident involving Bill Brill and
Gary Isaac. (See Appendix A regarding that matter.)
The secretary brought the papers into the office and
handed them to Volzing. who handed the papers to Sharpe.
After Sharpe looked at the papers. he gave them to Shop
Steward Coors to look over. Coors examined the papers,
and then he nodded his head to Sharpe and gave the papers
back to him. Sharpe signed the papers and asked for his
final check. Volzing said that he could not give him his final
check until he turned in his uniform.
5. The final conversation in which Ingalls is terminated
After waiting approximately 20 minutes in Segers' office,
Ingalls was called back into Volzing's office. In addition to
Volzing and Ingalls being present in the office, Shop Stew-
ard Coors was also called into the office by Volzing. Ingalls
explained that he did not ask for a union steward at that
point in time because, "Mr. Volzing asked for one before I
had a chance to ask for one." Ingalls was not certain as to
whether or not Assistant Station Manager Segers was pre-
sent in Volzing's office.
Volzing told Ingalls that he thought that Ingalls and he
had communication, and he did not know how this had
gotten as far as it had. Ingalls responded that he thought
they could communicate in the past.
Volzing told Ingalls that he regetted having to do what he
was going to have to do. Volzing said that, if Ingalls wanted
I 1173
[)tF('SIONS ()OF: NAIO()NA I.ABOR R.Al'IONS BOARD
to change his mind, it still would not be too late to call up
Bernier and set up a question session in San Diego. Ingalls
thanked Volzing for his concern. Ingalls said that he had
made his stand: he was going to stand by the issue which he
stood on, and that he was not going to answer any ques-
tions. Thereupon, Jewel passed some papers through the
office window, and Volzing told Ingalls to sign the papers.
turn in his uniform, and he would have his final check when
he turned in his uniform.
Ingalls stated at the hearing that Coors did not sa any-
thing during the time that he was in Volzing's office with
him.
6. vents that day after the termination
When Ingalls left the office, he saw Sharpe waiting in the
hall. Ingalls told him. "Well, it's final now. I've been termi-
nated." Sharpe replied. "Well, so was I." Then the two per-
sons went back to the airfreight building where Reynolds
was typing up a new grievance form. which they signed.
and then they went home.
Ingalls picked up his uniform at the cleaners and turned
it in to Volzing that day. Volzing gave Ingalls his check. but
there was no further conversation between the two persons
at that time.
Sharpe also obtained his uniform from the cleaners, and
he took his uniform back to the facility. Sharpe also was
given his final check at that time.
D. Conclusions
In The Kansas City Star Companv, 236 NLRB 866. 867
(1978), the Board reiterated its policy:
The Board, however, holds that it will defer to an arbi-
tration award where the proceedings appear to have
been fair and regular, all parties have agreed to be
bound, and the decision of the arbitrator is not clearly
repugnant to the purposes and policies of the Act.
Spielberg Manufacturing Company, 112 NLRB 1080,
1082 (1955).
The Board concluded in its Decision in Tihe Kansas City
Star Company, supra at 867:
For the above reasons, we find that the arbitrator's
award herein is not repugnant to the policies of the
Act; is, on its face, the fair and regular: and was
reached by a procedure to which the parties have
agreed to be bound. Accordingly, we conclude that it
will effectuate the purposes of the Act to give conclu-
sive effect to the grievance award and, on that basis.
we shall dismiss the complaint in its entirety.
Further guidance is given in the concurring opinion of
Board Member Truesdale who stated, supra at 869:
The majority reviews the record evidence, sees no ir-
regularities in the proceedings and no facial errors in
the arbitrator's factual findings and then examines the
arbitrator's legal conclusion to see if. on the facts he
has found, it is consistent with Board law.
With the foregoing Board precedents in mind. I conclude
that the opinion and award of Arbitrator Jones. which is
attached hereto as Appendix A, meets fully all of the
Board's criteria for deferral as enunciated in the Board's
Spielberg decision and as restated in the Board's he Kan-
Scs City Star C('mpan' decision. Therefore. I conclude that
the Board should defer to the arbitration award of Arbitra-
tor Jones with regard to the termination of Ingalls and
Sharpe.
There is no question that the proceedings before Arbitra-
tor Jones have been fair and regular. and that all parties
had agreed to be hound. The sole contention raised is that
the arbitrator's decision is clearly repugnant to the purposes
and policies of the Act. After examining the decision of
Arbitrator Jones, I conclude that that contention is not
meritorious. In partial summary of his conclusions, the fol-
lowing points may be noted:
I ) It is an almost routine practice for a union or an
employer advocate to interview witnesses a day or two
prior to an arbitration hearing in preparation for that
hearing.
(2) It is not unusual that this prehearing interview
will be the first time the advocate has had the opportu-
nity to hear "first-hand accounts of witnesses." This
was the situation here involving Attorney Rickard who
had not been present at the earlier investigation of the
Brill-Isaac incident.
(3) Such prehearing preparation is "simply not in
itself a 'dirty pool" situation." hut instead an impor-
tant part of' the administration of the grievance proce-
dure. It is not unusual for cases to be settled on the day
of the arbitration hearing because of the "advocate's
last-minute, eye-opened assessment of the significance
of these prehearing contacts."
(4) An advocate could go beyond the parameters of
legitimate inquiry into the job-related conduct of the
employee and fellow workers, or the interview could be
conducted in a coercive manner. but that was not the
situation involved herein.
(5) The employees whom the company attorney
sought to question were the three witnesses to the Brill-
Isaac incident, and their earlier disclosures to the Com-
pany had been the basis on which the Company had
acted to terminate Brill and Isaac.
(6) The Union's advocate had previously informed
the Company that these witnesses had "to some undis-
closed extent repudiated or retracted all or parts of
their June statements that had been the factual foun-
dation for the two discharges."
(7) The prehearing interviews by the company at-
torney were of on-duty employees who were being
questioned about the conduct of other on-duty em-
ployees. "The employer has the right to expect from
them good-faith cooperation and honest answers."
(8) The questions asked pertained to what had hap-
pened in the break room on June 6, 1977. and the
questions did not seek disclosure of what the witnesses
would testify to at the hearing or an) tactical details of
the Union's presentation. These were proper questions
concerning what these witnesses had earlier observed.
I 174
PAC(IFIC SO()UIIWESI AIRI.IN S. IN(.
(9) There \, as no rongful intrusion" bh the cornm-
pans attorney into the tlnion's processing of the gric\-
ances to arbitration.
(10) Ingalls and Sharpe did not en jo a right to re-
fuse to answer proper questions in these circumstances.
However. Ingalls and Sharpe were "caught in the mid-
dle of the struggle between two organizations." and
additionally this was "a case of first instance" between
the Company and the nion. Therefore. the arbitrator
provided for immediate and full reinstatement of In-
galls and Sharpe. hut without hackpay to them.
I have considered the Board's decision in Johnie'iS Poul-
try Co., 146 NLRB 770 (1964). enfiorcement denied 344
F.2d 617 (8th Cir. 1965). and the other cases cited hb the
counsel for the General Counsel in his brief. In Johlnice'
Poultlo, tsuJra at 774 775. the Board held:
Despite the inherent danger of coercion therein, the
Board and courts have held that where an employer
has a legitimate cause to inquire. he man exercise the
privilege of interrogating employees on matters inv olv-
ing their Section 7 rights without incurring Section
8(a)(1) liability. The purposes which the Board and
courts have held legitimate are of two types: the verifi-
cation of a union's claimed majority status to deter-
mine whether recognition should be extended, in-
volved in the preceding discussion, and the
investigation of facts concerning issues raised in a com-
plaint where such interrogation is necessary in prepar-
ing the employer's defense for trial of the case.
In allowing an employer the privilege of ascertaining
the necessary facts from employees in these given cir-
cumstances, the Board and courts have established
specific safeguards designed to minimize the coercive
impact of such employer interrogation. Thus, the em-
ployer must communicate to the employee the purpose
of the questioning, assure him that no reprisal will take
place, and obtain his participation on a voluntary ha-
sis: the question must occur in a context free from em-
ployer hostility to union organization and must not hbe
itself coercive in nature; and the questions must not
exceed the necessities of the legitimate purpose bh pry-
ing into other union matters, eliciting information con-
cerning an employee's subjective state of mind, or oth-
erwise interfering with the statutory rights of
employees. When an employer transgresses the bound-
aries of these safeguards, he losses the benefits of the
privilege.
After studying the Board's decision in Johnnie's Poulry.
and the numerous Decisions which follow it, I conclude
that the safeguards which the Board said must he observed
in Johnnie' Pouhry' are applicable to Board proceedings
under the Act. That is, events which take place after the
filing of an unfair labor practice charge, or events which
take place after the issuance of a complaint by the General
Counsel. In those circumstances, the Board's rationale in
Johnnie's Poultro and related cases appears to be an accom-
modation between the protection of employee's rights un-
der Section 7 of the ACt and the protection of the Board
processes from abuse or coercion, while at the same time
"allowing an employer the privilege of ascertaining the nec-
essary facts from employees in these given circumstances
.... I am not persuaded that the Board meant to extend
these .1,itic Pout. safeguards to the prearbitralr.ion
hearing preparation which was engaged in by the cnlp.in\
attorney in this case.
After considering the foregoing, I conclude that the deci-
sion of Arbitrator Jones is not "clearly repugnant to the
purposes and policies of the Act." and that the Board
should deter to the decision of Arbitrator Jones in accord-
ance with the Board's Decisions in Sli'lhb'r and Thew Khi-
i. (it il' Stiar Cot(-(; Vt.
We turn noW to the question of whether the telephone
conversation between Ingalls and Bernier and the telephone
conversation between Sharpe and Bernier oni August 24,
1977. which were conducted without the presence of a
union representative. as requested by Ingalls and Sharpe.
violated Section 8(a)( I ) of the Act under the legal principles
explicated bh the Supreme Court in N. L. RB. v. J Itcn-
garlttte. Inc.. 420 .S. 251 ( 1975).
In ('Cerlifid Grocrs ol'Calitirnia. Ltd., 227 Nl RB 12 11
1212 13 (19771. the Board commented with regard to the
Supreme Court's lf'eitigarten, supra. decision:
The Supremne Court in Weingarten, ltpr. cited i th
approval the Board's decisions in Qulioti lln/ie rlr-
ig (Corpatny 1195 NL.RB 197 (1972)] and Mobil Oil
(Corporation [196 NLRB 1052 (1972)1. indicating that
the Board had set forth in those cases the basis of the
statutory right of an employee to refuse to submit
without union representation to an intervieA which he
reasonabl fears may result in his being disciplined.
The Supreme Court. citing relevant language in .lobil.
slqra, and Qualliiv. lrpral, found that (I) the right in-
heres in the Section 7 guarantee of the right of employ -
ees to act in concert for mutual aid and protection: (2)
the right arises only in situations here the emploee
requests representation, i.e., the emplo,ee may forego
his guaranteed right and. ihe prefers. participate in an
interviev unaccompanied by his union representatie:
(3) the employee's right to request representation as a
condition of participation in an interview is limited to
situations ,ahere the employee reasonably believes the
investigation will result in disciplinary action: (4) exer-
cise of the right may not interfere with legitimate em-
ployer prerogatives and the employer need not justifl
his refusal and may leave to the employee the choice
between having an interview unaccompanied bh his
representative. or having no interview and foregoing
any benefits that might be derived from such inter-
view: and (5) the employer has no duty to bargain with
any union representative who mas be permitted to at-
tend the investigatory interview.
After finding that the Board's holding is permissible
construction of concerted activities, the Court went on
to state that the action of an employee in seeking to
have the assistance of his union representati e at a
confrontation with his emploer clearly falls within the
literal meaning of Section 7 of the Act. This is true
even though the emplo!ee alone may have an immedi-
ate stake iii the outcomne. The union representatie is
safeguarding not only the particular employee. but
also the interests of the bargaining unit. and his pres-
ence is an assurance to other employees in the hargain-
1175
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing unit that they, too, can obtain his aid and protec-
tion if called upon to attend a like interview.
Requiring a lone employee to attend an investiga-
tory interview which he reasonably believes may re-
sulting the imposition of discipline perpetuates the in-
equality the Act was designed to eliminate and Bars
recourse to the safeguards provided by the Act. Such
statutory right, the Court found, is in full harmony
with actual industrial practice.
With the foregoing precedents in mind, I conclude that
the telephone conversations in question here fit squarely
within the Supreme Court's Weingarten decision. Accord-
ingly, I conclude that the Respondent violated Section
8(a)(1) of the Act when it conducted the telephone inter-
views of Ingalls and Sharpe on August 24, 1977, without
the presence of a union representative, as each one had
requested.
While I have weighed and considered the cases cited and
the arguments advanced by the attorneys for the Respon-
dent in their brief, I am not persuaded nor convinced that
these two violations of the Act were de minimis violations,
nor were they remedied by the fact that a union represent-
ative was present during the earlier interviews of Ingalls
and Sharpe on August 23, 1977, and also at their subse-
quent final interviews on August 24, 1977. In my view, the
fact that a union representative was present during the in-
terviews held before the telephone conversations and during
the interviews held after the telephone conversations does
not negate the right of Ingalls and Sharpe to have had a
union representative present during the telephone conversa-
tions.
I note that Arbitrator Jones commented in concluding
his opinion:
So, although the failure of the station manager to allow
the presence of a Union representative in a disciplinary
setting did violate the Agreement-and quite possibly
the statute, as interpreted in NLRB v. Weingarten, Inc.,
420 U.S. 251 (1975)-the violation in this context was
not a material one and should be given no significance
in this proceeding. In no way did it disadvantage these
two employees. Indeed, had the presence of a Union
representative been afforded in these August 24 tele-
phone conversations it is quite evident that their tenor
and result, at least as to these two of the three employ-
ees involved, would clearly not have changed what was
said by them.
The rationale of Arbitrator Jones has a great deal of logic
behind it, and the rationale presents a practical approach to
the Weingarten, supra, issue under the particular facts of
this case. However, in reviewing numerous Board Decisions
and court decisions, I have not ascertained that a question
of whether a Weingarten, supra, type of violation has oc-
curred can be determined by what might have occurred if a
union representative had been present during the interview.
Accordingly, I conclude that violations did occur during
the telephone conversations involved herein, whether or not
the presence of a union representative during those tele-
phone conversations would have altered the responses given
by Ingalls and Sharpe.
I further conclude that a remedial order is necessary to
reassure the employees of the Respondent of their rights
under the Act. In determining an appropriate remedy in
this case, I am mindful of the fact that this is not a case
where employees were terminated because they requested a
union shop steward to be present during their interviews,
nor is this a case where employees were terminated because
they refused to participate in such interviews without the
presence of a union representative. Cf. Brown & Connolly,
Inc., 237 NLRB No. 48 (1978).
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By requiring that employees participate in interviews
with the Respondent without union representation, where
such representation has been requested by the employees,
and where the employees have reasonable grounds to be-
lieve that the matters to be discussed may result in their
being the subject of disciplinary action, the Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. The unfair labor practices set forth above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Since I have found that the Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act, I shall recommend to the Board that the Re-
spondent be ordered to cease and desist from engaging in
those unfair labor practices.
I shall also recommend to the Board that the Respondent
take certain affirmative action in order to effectuate the
policies of the Act.
[Recommended Order omitted from publication.]
1176