Pacific Telephone & Telegraph Co.

National Labor Relations Board - Board Decisions

Dec 14, 1979

246 N.L.R.B. 1007 (N.L.R.B. 1979)

PACIFIC TEI.EPHONE AND TEL.I(GRAPH CO.
Pacific Telephone and Telegraph Company and Com-
munications Workers of America, Local No. 11502,
AFL-CIO. Case 31-CA-8261
December 14, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MIURPHY, AND TRUESDAI.E
On August 10, 1979, Administrative Law Judge
Maurice M. Miller issued the attached Decision in
this proceeding. Thereafter, the General Counsel filed
exceptions and supporting briefs, the Charging Party
joined in the exceptions filed by the General Counsel,
and Respondent filed cross-exceptions and briefs in
support thereof and in answer to the General Coun-
sel'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, as fur-
ther explicated herein, and to adopt his recommended
Order.
Subsequent to the issuance of the Administrative
Law Judge's Decision herein, the Board issued its De-
cision and Order in Baton Rouge Water Works Com-
pany, 246 NLRB 995 (1979), wherein it concluded
that the Supreme Court's decision in N.L.R.B. v. J.
Weingarten, Inc., 420 U.S. 251 (1975), does not vest in
an employee a Section 7 right to the presence of a
union representative at an employer-conducted meet-
ing held solely for the purpose of informing the em-
ployee of, and acting upon, a previously made disci-
plinary decision. In reaching this conclusion, the
Board emphasized that an employee-initiated conver-
sation concerning the reason for the previously deter-
mined discipline will not, alone, convert the meeting
into an interview in which the Weingarten protections
apply. 'he Board further reexamined its decision in
Certified Grocers of California, Ltd.. 227 NLRB 1211
(1977), to the effect that Weingarten applies to any
interview, whether labeled investigatory or disciplin-
ary, which an employee reasonably believes might re-
sult in disciplinary action being taken against him,
and concluded that that decision was overly broad,
I Respondent and the General Counsel have excepted to certain credibility
findings made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with respect
to credibility unless the clear preponderance of all of the relevant eidence
convinces us that the resolutions are incorrect Standard DrI Wa'll Products.
Inc., 91 NLRB 544 (1950). enld. 188 F.2d 362 (3d (Or. 1951). We have
carefully examined the record and find no basis for reversing his findings.
and accordingly overruled Certified Grocers to the ex-
tent that it was inconsistent with Baton Rouge. Ac-
cordingly, under the authority of our decision in Ba-
ton Rouge, we agree with the Administrative Law
Judge that Respondent did not deprive its employees
of their Weingarten rights in this proceeding.2
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 Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint be, and it hereby is, dismissed
in its entirety.
2 In view of our disposition herein, we find it unnecessary. inter alia. to
determine whether Respondent unlawfully refused to permit union represen-
tatives to consult with employees prior to said employees' disciplinary inter-
views or to determine what the appropriate remedy would have been had a
Weingarien violation been established.
Member Murphy agrees that the meetings in this case were not such as to
require that the employer allow the presence of a representative upon re-
quest of the employee See her concurrence in Baton Rouge 1aiat'r Il;orA
(Corparwn, supra
DECISION
SIAIFMFNI t)F 1111t CAS
MAt RI(l M. MILl I R. Administrative law Judge: Upon
a charge and amended charge filed on August 7 and Sep-
tember 28, 1978, respectivel, and duly served. the General
Counsel of the National l.abor Relations Board caused a
complaint and notice of hearing dated September 29. 1978.
to be issued and served upon Pacific Telephone and Tele-
graph Company, designated as Respondent within this De-
cision. Therein, Respondent was charged with the commis-
sion of unfair labor practices within the meaning of Section
8(a)(i) of the National Labor Relations Act, as amended.
61 Stat. 136, 73 Stat. 519. 88 Stat. 395. Specifically, the
General Counsel charged that Respondent had violated the
statute through its refusal to allow certain union representa-
tives to represent employees, effectively. by asking ques-
tions or speaking in the course of their disciplinary inter-
views, and through its refusal to allow those union
representatives opportunities to consult with concerned em-
ployees before their interviews. Respondent's answer, duly
filed, conceded certain factual allegations within the Gen-
eral Counsel's complaint, but denied the commission of an)
unfair labor practice.
Pursuant to notice, a hearing with respect to this matter
was held before me on November 20 and 21, 1978. in Los
Angeles, California. The General Counsel. complainant
Union, and Respondent were represented by counsel. Each
party was afforded a full opportunity to be heard, to exam-
ine and cross-examine witnesses, and to introduce e idence
with respect to pertinent matters. Since the hcaring's close.
briefs have been received from the General C'ounsel's repre-
sentative, complainant Union's counsel, and Respondent's
counsel; these briefs have been duly considered.
246 NLRB No. 163
1007
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
Upon the entire testimonial record, documentary evi-
dence received, and my observation of the witnesses, I
make the following findings of fact:
1. JURISD)ICTION
Respondent raises no question with respect to the Gen-
eral Counsel's present jurisdictional claims. Upon the com-
plaint's relevant factual declarations, more particularly,
those set forth in detail within the second paragraph, which
Respondent's counsel concedes to be correct, and upon
which I rely, I conclude that Respondent was, throughout
the period with which this case is concerned, and remains,
an employer within the meaning of Section 2(2) of the Act,
engaged in commerce and in business activities affecting
commerce within the meaning of Section 2(6) and (7). Fur-
ther, with due regard for presently applicable jurisdictional
standards, I find assertion of the Board's jurisdiction in this
case warranted and necessary to effectuate statutory objec-
tives.
II. COMPLAINANT UNION
Communications Workers of America, Local No. 11502,
AFL-CIO, designated as complainant Union, is a labor or-
ganization within the meaning of Section 2(5) of the Act
which admits certain of Respondent's employees to mem-
bership.
III. THE UNFAIR LABOR PRACTICES CHARGED
A. Issues
This case presents two closely related substantive ques-
tions, both of which have been thoroughly litigated. For
present purposes, these questions may be summarized as
follows:
1. Did Respondent's management representatives deny
their firm's employees their right to Union representation
during disciplinary interviews, through their refusal to per-
mit union representatives who were present to participate,
effectively, by speaking or asking questions?
2. Did Respondent's management representatives fur-
ther violate Section 8(a)(l) of the statute through their fail-
ure or refusal to provide union representatives with oppor-
tunities to consult with their firm's employees before those
employees were required to participate in disciplinary inter-
views?
With respect to these questions, the General Counsel's
representative, of course, seeks affirmative determinations.
However, Respondent contends that conferences between
management and employees, convened "solely for the pur-
pose of announcing discipline," do not require a designated
and requested union representative's presence: and that
various meetings between management representatives and
Respondent's employees, with which this case is concerned.
were conducted solely for the purpose of announcing disci-
pline. Further, Respondent contends that those employees
who were disciplined did receive adequate representation-
assuming, arguendo, that the presence of union representa-
tives, whenever requested, during such disciplinary confer-
ences might properly be considered required, consistently
with the statute as presently construed. With respect to the
General Counsel's second contention, Respondent seeks a
determination that union representatives never requested
opportunities to meet and confer with represented employ-
ees before those employees received disciplinary notices.
Further, Respondent suggests that no unfair labor practice
was, nevertheless, committed-assuming, arguendA, that
union representatives did request opportunities to confer
with concerned employees, and that Respondent denied
such requests.
B. Facts
I. Background
a. Respondent 's customer service facilities
Respondent functions as a public utility: it provides tele-
phone service throughout the State of California for resi-
dential and commercial customers. In that connection it
maintains numerous facilities and work locations.
The situation with which this case is concerned devel-
oped at two customer service facilities within a single Los
Angeles, California, district: the largest was a residence
business office, located at 5455 Wilshire Boulevard, while
the smaller work location was 1149 North Gower Street,
Hollywood. Respondent's Wilshire Boulevard facility is lo-
cated within a 22-story office building situated within a
busy commercial district. Therein, the telephone company's
business office occupies the 20th floor, plus a 14th floor
district manager's office; the remainder of the building pro-
vides space for various commercial tenants. During the pe-
riod with which this case is concerned, specifically, Febru-
ary 1978, some 86 company employees worked at
Respondent's Wilshire Boulevard location. Most of these
were customer service representatives; the rest were clerks,
typists, and stenographers. The firm's Gower Street public
office was considerably smaller; some 16 nonsupervisory
employees worked there.
Customer service representatives take calls from tele-
phone subscribers, dealing with service orders, billing prob-
lems, and related matters; they work at desks, located
within a largely open floor area divided into two sections
within Respondent's Wilshire Boulevard facility. Through-
out this period they were supervised consistently with the
following hierarchial line. Some 40 service representatives
within a defined "unit" were monitored by 7 "first-level"
management representatives designated as business office
supervisors. Two such 40-member groups were supervised
by coordinate "second-level" management representatives.
During February 1978 these were, respectively, Business
Office Managers James Jenks and Jo Ann Sample. (At Re-
spondent's smaller Gower Street facility, Public Office
Manager Terre Cox held a comparable second-level posi-
tion; however, she supervised a small group of customer
service representatives together with other nonsupervisory
personnel within her facility directly.) Respondent's district
manager, Peter Norvell, functioned as Jenks', Sample's, and
1008
PACIFIC TELEPHONE AND TELEGRAPH CO.
Cox's superior with his district office located within the
Company's Wilshire Boulevard facility.
b. Respondent's relationship with the union
Respondent and the Union's parent body, Communica-
tions Workers of America, AFL CIO, have maintained a
longstanding collective-bargaining relationship. Through-
out the pertinent period, they were privy to a collective-
bargaining contract, effective August 1977, binding upon
the Union herein. That contract, inter alia, contained the
following provision:
Article 4, Section 4.04. At any meeting between a rep-
resentative of the Company and an employee in which
discipline (including a warning which is to be recorded
in the personnel file, suspension, demotion or discharge
for cause) is to be announced, a Union representative
may be present if the employee so requests.
The contract further contains a grievance procedure capped
with a binding arbitration clause. Counsel has stipulated.
herein, that these clauses would govern the disposition of
grievance claims by Respondent's employees growing out
of the situation with which this case is concerned.
2. The work stoppage
On Tuesday, February 7, 1978, certain Wilshire Boule-
vard and Gower Street workers staged a nonsanctioned
work stoppage, calculated to demonstrate their discontent
with certain working conditions. The stoppage was trig-
gered with a hastily planned, rather loosely maintained
picket line, which a small group of Respondent's workers
had mounted before their Wilshire Boulevard facility's
street front entrance around 7:30 a.m. When Respondent's
employees began arriving for work, they were confronted
by a limited number of pickets. (Respondent's Wilshire
Boulevard workers had several different starting times, dur-
ing this period. Most of them were due to report for work at
8:30, Respondent's regular starting time; probably two had
been given 9 o'clock "night line" starting assignments.
Some, however, were working voluntary overtime; these
employees, between 10 and 15 in number, were scheduled
to report sometime between 7 and 7:30 that morning.)
Those workers who were not participants in the initial
picket line reacted in several different ways when they saw
what their fellow workers were doing. Some joined the
picket line; some proffered verbal support. Others went
through the line and proceeded to report for work. Some
hesitated, remained on the sidewalk, congregated in groups,
and discussed what their response should be. Others left the
scene, proceeded to a coffeeshop nearby, and presumably
considered developments. Some questioned their fellow
workers-those whom they considered knowledgeable with
respect to matters of union concern-presumably seeking
guidance regarding what was going on, and what would
happen.
In due course, the crowd within the vicinity of the Wil-
shire Boulevard building's entrance grew. Passers-by
stopped to watch: some people, presumably with business
in the building which involved commercial enterprises other
than Respondent's telephone company, likewise paused.
Between 7:30 and 9:00 a.m. the group swelled from a small
picket line manned by some six-to-eight company workers
to a comparatively sizable assemblage compassing numer-
ous company employees, passers-by, some curious specta-
tors, several union representatives, and Respondent's man-
agement personnel.
Shortly after 7:30 a.m., when District Manager Norvell
reached the Wilshire Boulevard facility, he noted the pres-
ence of several pickets. Having notified Respondent's labor
relations department, together with his superior. Division
Manager Critchfield, that a work stoppage might develop
he directed Business Office Manager Jenks to gather the
names of Respondent's workers who were participating,
whether actively or passively. (Norvell further notified
Business Office Manager Sample that Respondent's various
"first-level" supervisors should be directed to record the
names of company workers, then working voluntary over-
time hours, who had reported for work, those who would
thereafter be reporting on time, and those workers who
might report late.) By 8 a.m., Jenks was downstairs, watch-
ing developments outside the building's front entrance. He
remained for some 10 or 15 minutes. I find, recording the
names of Respondent's employees whom he recognized,
who were picketing with hastily prepared placards. or who
were standing nearby, failing or refusing to cross the picket
line.
By 8:30 a.m. both the Union's president, Warren Down-
ing, and Chief Steward Richard "Bimbo" Mariani had
reached Respondent's Wilshire Boulevard facility. Down-
ing questioned Respondent's workers to determine their
reasons for promoting the stoppage: he declared that the
Union could not condone their conduct. and sought to per-
suade them to report for work. Shortly thereafter, both
union representatives joined District Manager Norvell and
Business Office Manager Jenks in the building lobby and
discussed the situation. (By this time Norvell had learned
from Respondent's Gower Street manager that four work-
ers at that location were "on the street" carrying signs and
that these workers were, likewise, failing or refusing to re-
port for work.)
The district manager had previously been directed by Re-
spondent's labor relations department personnel to notify
those workers still outside that Respondent considered their
"walkout" unauthorized and unprotected; that disciplinary
measures which might follow were out of his hands; and
that Respondent had work for them upstairs. The firm's
Gower Street manager had likewise been directed to make
similar announcements to workers who might be "out on
the street" after Respondent's regular 8:30 starting time.
Norvell notified the Union's president that he had been di-
rected to tell Respondent's workers that disciplinary mea-
sures responsive to their "unprotected" work stoppage
would be "out of the hands" of local management and to
solicit their resumption of work. This Respondent's district
manager did. (Meanwhile, throughout a second 10-minute
observation period Business Office Manager Jenks, who
had sometime during this period procured a notebook con-
taining a complete list of Respondent's Wilshire Boulevard
workers, was "checking off" the names of those still outside
who had not yet reported for work.) By then. Division
Manager Critchfield had reached his firm's Wilshire Boule-
vard facility. Arrangements for a forthwith conference be-
1009
DLCI[)SIONS OF NATIONAL. LABOR REI.A IIONS BOARD)
tween Respondent's management representatives and the
Union's spokesmen, during which the various complaints
and grievances which had triggered the work stoppage
would be considered, were concluded. Respondent's work-
ers were notified sometime between 9:05 and 9:30 a.m. I
find those Wilshire Boulevard workers who had remained
outside began reporting for work. At Gower Street, four
workers reported at approximately 9:45.
During the 4-hour conference which followed, the
Union's representatives pressed a demand, inter alia, that
those employees who had participated in the work stoppage
not be disciplined. Division Manager Critchfield declared.
however, that he could not discuss Respondent's disciplin-
ary reaction since decisions with respect thereto would be
made within Respondent's general administrative "corpo-
rate level" hierarchy. (Sometime previously, specifically,
during 1969 Respondent had defined a corporate policy
pursuant to which participants in wildcat walkouts or work
stoppages would be disciplined through suspension and
possibly discharge. Since then, several stoppages had been
countered with written warning notices or suspensions.)
Critchfield promised to let the Union's president know
whether Respondent's Wilshire Boulevard and Gower
Street personnel would be disciplined, as soon as he learned
his firm's higher level decision. The Union's spokesman fur-
ther presented some "couple of dozen" complaints, which
Respondent's Wilshire Boulevard personnel had reported.
The record is silent, however, with respect to their disposi-
tion.
3. Respondent's reaction
a. The decision to impose discipline
Later on February 7, John Randolph, Repondent's
southern California labor relations director, reported these
developments to Respondent's assistant vice president for
labor relations. They decided that "all employees" who had
been "involved in the walkout" should be suspended for I
day without pay. Division Manager Critchfield was so ad-
vised; further, he was notified that he, together with his
concerned managers, should decide how to manage these
suspensions, so that their impact upon Respondent's ability
to operate and provide customer service might be mini-
mized.
On Wednesday, February 8, Respondent's corporate lev-
el decision was communicated to District Manager Norvell.
He conferred, thereafter with his concerned subordinates,
Business Office Managers Jenks, Sample, and Cox. Deci-
sions were reached that, during February 9 working hours.
Respondent's employees would be individually notified re-
garding their prospective disciplinary suspensions with a
previously prepared "set" statement which all three con-
cerned managers would provide. (While a witness, Norvell
reported, with Sample's corroboration, that their prepared
statement said "something to the effect" that the employee
concerned, for his or her participation in the February 7
unauthorized walkout, would be suspended for I day with-
out pay within the next 90 days; the date to be determined
by the needs of the business. Respondent's workers were to
be told further that they would be notified sometime "prior
to" their prospective suspension dates.)
I'his prepared statement, so the record shows, had been
approved by Respondent's labor relations departmental
personnel. Labor Relations Director Randolph had himself
suggested the proposed "90 day" period, within which sus-
pensions might be imposed.
I find that sometime during the late afternoon hours of
February 8, Respondent's district manager telephoned the
Union's president. He reported Respondent's proposed
February 9 disciplinary program. Downing declared that
he would send Chief Steward Mariani to Respondent's Wil-
shire Boulevard location the following morning so that he
would be "available" for workers there who might desire
union representation. The Union's president reported that
he personally would make himself similarly "available" in
Respondent's Gower Street facility.
b. Respondent s guidelines jor management conferences with
emplqvees fiacing discipline
During various February 8 telephone consultations be-
tween District Manager Norvell and Respondent's labor re-
lations departmental personnel, several consensual "under-
standings" were reached with respect to how the firms'
February 9 disciplinary conferences should be conducted.
Respondent's district manager subsequently notified his
concerned managers that Respondent's three business office
unit managers within the company's Wilshire Boulevard
and Gower Street facilities would separately notify employ-
ees in their respective units regarding Respondent's disci-
plinary suspension decision. Workers summoned for notifi-
cation regarding their prospective suspension could claim
their contractual right to have a union representative with
them should they so choose. Since Respondent's workers
would be summoned solely for notification regarding their
suspension the union representatives should not be permit-
ted to pursue questions regarding the February 7 work
stoppage but such representatives could seek clarifications
regarding whatever discipline Respondent proposed. More
particularly, such representatives could raise questions re-
garding the subsequent effects which a prospective suspen-
sion without pay would have upon the concerned worker's
attendance record. (While a witness, Respondent's southern
California personnel manager, Jimmy Brenton, testified
that the Company's business office managers were told, fur-
ther, that, should concerned employees request opportuni-
ties to confer and seek counsel with their union representa-
tive before going into their discipline conference, such
opportunities should be granted.) Subsequently, during a
February 9 conversation with Business Office Manager
Jenks, Respondent's personnel manager reiterated his prior
comments, that should the Union's representative, present
during a disciplinary notification conference, raise ques-
tions relative to Respondent's discipline, those questions
could be answered. but that he should not go into matters
concerning "participation or nonparticipation, guilt or in-
nocence" related to the February 7 walkout. According to
Personnel Manager Brenton, Jenks was told that "matters"
related to that work stoppage could be handled through
contractual grievance procedures.
1010)
PACIFIC TELEPHONE AND) FIT-l.F(RAPH (CO.
4. Management's disciplinary conferences
On Thursday. February 9, Respondent's business office
managers commenced a series of conferences concerned
with prospective disciplinary suspensions in their Wilshire
Boulevard and Gower Street facilities. These conferences
were conducted throughout the day commencing shortl
after Respondent's regular 8:30 a.m. starting time. Eventu-
ally, some 43 to 44 employees were individually notified
with regard to their prospective disciplinary suspensions.
No definitive conclusions would be waranted upon the
present record with regard to Respondent's methods of de-
termination whereby those company workers considered
candidates for disciplinary suspension were designated. The
testimonial record, considered in totality, suggests, merely.
that a master list of candidates derived from the various
checked off names which Business Office Manager Jenks
had previously recorded, plus the lists which Jo Ann Sam-
pie and Respondent's several first-level supervisors had con-
currently prepared designating those employees who had
reported late for work on February 7 specifically had. pre-
sumably. somehow been compiled. Such a master list, so
the record shows. had been submitted later that day to Re-
spondent's district manager. Norvell had accepted that list.
without further verification or review, as his firm's puta-
tively "complete and accurate" list with respect to workers
considered subject to prospective disciplinary suspensions.
Presumably, copies had subsequently been provided for
Managers Jenks, Sample, and Cox. who would conduct the
February 9 conferences.
Within Respondent's Wilshire Boulevard facility. Man-
agers Jenks and Sample had directed their several first-level
supervisors to bring employees, listed as candidates for dis-
ciplinary suspension, separately to their respective offices
whenever those employees became free to leave their desks.
No predetermined order of precedence was followed.
Throughout the day, therefore, workers, selected seriatim
by their direct supervisors, were escorted to conferences
with their particular departmental unit heads. I find that
most of those summoned, save for possibly two service rep-
resentatives, requested union representation before their
conferences with Respondent's business office managers be-
gan. When summoned, they suspected or knew, that they
were to be notified regarding their disciplinary suspensions.
a. The first conference
Consistent with his February 8 commitment, the Union's
president had directed Chief Steward Mariani to make him-
self available. The chief steward reached Respondent's fa-
cility shortly before the Company's regular starting time.
Sometime thereafter Business Office Manager Jenks re-
quested a subordinate first-level supervisor to bring in some
customer service representative, within her eight-member
section, who was scheduled to receive a disciplinary suspen-
sion. (Respondent's first-level supervisors had previously
that day been notified that participants in the Februar 7
temporary work stoppage would be given disciplinary sus-
pensions without pay. They had themselves prepared, or
been provided separately with lists which designated those
within their respective sections who would he disciplined.)
Respondent's section supervisor selected Diane Moran-
ski, who was not then preoccupied with a business call. She
escorted \Moranski to her superior's office: both took seats.
IThe record herein reflects divergent recollections with re-
spect to whether the nion's chief steward had joined
Moranski and her supervisor directly outside Jenks' ffice
door before entering with them: whether he came in shortly
thereafter; or whether he joined the group belatedly. after
Respondent's business offifice manager had started to read
his prepared disciplinary pronouncement. For present pur-
poses. testimonial conflicts in this connection need not be
resolved. Despite the General Counsel's contention that
Moranski had personally requested union representation.
the present record provides no persuasive testimonial war-
rant for such a determination. lowever, Chief Steward Ma-
riani's proffered recollections, which I credit in this connec-
tion, will support findings which I make that he was at
some point introduced to Respondent's customer service
representative: that Moranski asked him what would hap-
pen: that, inter alia, he suggested she should let him "han-
dle the situation" or her: and that Moranski voiced no
protest.
Respondent's business office manager then asked Moran-
ski if she knew why she had been summoned. She replied
that she guessed she did. Jenks began delivering his pre-
pared statement that for her participation in the February 7
work stoppage she would be suspended for I day within the
next 10 days. At this point, however, Chief Steward Mari-
ani interrupted Respondent's business office manager, de-
claring that he had a question he wished to present.
(Though he may not have stated his purpose fully. he
started to raise a question, directed to Jenks, regarding the
nature of Moranski's purported participation in Respon-
dent's brief February 7 work stoppage.) Mariani was told
that those present were not there to review February' 7 de-
velopments and that he would not be permitted to ask ques-
tions calculated to prolong Respondent's disciplinary notifi-
cation program. The chief steward declared that Moranski
was entitled to union representation. He queried Jenks with
regard to how he could represent her if he could not speak.
During a brief colloquy which followed Mariani was noti-
fied that he could seek clarifications with regard to Respon-
dent's discipline but that he would not be permitted to raise
questions, solicit responses, or make remarks dealing with
the February 7 developments or Moranski's work stoppage
participation.
Mariani thereupon declared he would not participate fur-
ther in Respondent's projected conferences; that Respon-
dent's manager would have to proceed with other union
stewards present and that he (Mariani) would "look into
the possibility" that unfair labor practice charges might be
filed. With that, he left Jenk's office and telephoned the
Union's president to report developments. He then tele-
phoned the district headquarters of the parent organization
and described what had happened. Thereafter he left Re-
spondent's premises.
Meanwhile. Respondent's business office manager had,
so I find, completed his disciplinary conference with
Moranski: she had been notified of her prospective suspen-
sion. For reasons which have not been recapitulated, for the
present record, Moranski was not designated an 8(a)(3) dis-
criminatee in the charge herein. he General ('ounsel's
1011
DE(CISIONS OF NATIONAL. LABOR RL.ATIONS BOARD
complaint contains no specification that during her disci-
plinary notification conference she was deprived of statuto-
rily guaranteed rights.
b. Subh.equent con!/'rten('es
With matters in this posture, Business Office Manager
Jenks. who had reported developments to Respondent's dis-
trict manager, conferred with Jo Ann Sample, his coordi-
nate deparmental unit supervisor. They' decided to conduct
simultaneously further disciplinary conferences involving
workers within their respective sections. Sample requested
Union Steward Vicki Murray to sit in with the first worker
she proposed to summon for a disciplinary notification.
Murray was told that the worker had requested union rep-
resentation. Concurrently, the Union's second steward of
the Wilshire Boulevard facility, Maureen Monroe, was re-
quested to sit in while Jenks summoned workers subject to
his supervision for notification regarding their prospective
suspensions,
When contacted by Business Office Manager Sample.
Murray first requested a chance to call the Union's local
office. She spoke with Chief Steward Mariani who told her
that he had been denied any chance to raise questions re-
garding the February 7 work stoppage or discuss the pur-
ported involvement of particular workers therein and that
he had therefore refused to participate further. He re-
quested Murray to participate, together with Monroe, her
fellow steward, when summoned to Respondent's projected
conferences, however, and to represent concerned workers
to the best of her ability. Murray thereupon notified Sample
that she would participate when required.
Shortly thereafter, while present during Sample's first dis-
ciplinary conference, Murray sought a chance to speak. She
was told that she could not talk during Respondent's pro-
jected meetings. Despite this, when the concerned worker
present was notified that her prospective suspension date
would be determined by the Company, Murray' raised a
question regarding what day that would be. Sample re-
minded her that she could not raise questions but com-
mented that Respondent's disciplined employees could talk
should they so choose. The concerned worker present w'as
then asked whether she had any questions or had anything
to say. When she responded negatively the conference ter-
minated.
In the meantime, Maureen Monroe. when invited by a
first-level supervisor to sit in with the next worker sum-
moned by Business Office Manager Jenks, found her par-
ticipation similarly circumscribed. Respondent's designated
unit manager, the concerned worker, that worker's first-lev-
el supervisor, and the Union's steward comprised the
group. As he had with Moranski, Jenks began by asking
whether Respondent's employee knew why she was there.
When he received a negative response the business office
manager declared that their conference concerned the Feb-
ruary 7 work stoppage and notified the worker of her pro-
spective suspension. Then, he asked whether she had any
questions or had anything she wished to say. She declared
that she had none. Monroe thereupon started to query the
concerned employee with respect to what time she had ar-
rived for work on February 7 and whether there had been a
picket line when she reached Respondent's facility. Jenks
promptly interrupted her: she was told that, consistent with
the directives which he had received from Respondent's la-
bor relations people, she could not ask such questions, but
that queries calculated merely to clarifv the nature of Re-
spondent's projected discipline would be permitted. With
matters in this posture the conference concluded.
Murray and Monroe thereupon jointly consulted directly
with Jenks and Sample. When notified once more that they
would not be permitted to discuss the February 7 stoppage,
or raise fact finding questions with respect thereto, both
stewards declared that functioning as union representatives
they would nevertheless persist in their efforts to talk de-
spite Respondent's ban. The stewards were told that they
were upsetting their fellow workers; that their persistence in
speaking up would prolong the projected conferences: and
that such persistence would merely make matters worse.
Murray then declared that she wanted some chances to
consult with any workers summoned for prospective disci-
pline, privately, be/ore their respective conferences. Jenks.
however, both deprecated and denied her request; he sug-
gested that Murray would merely solicit declarations from
concerned workers that they had been "afraid" to cross
their fellow workers' picket line, which Jenks suggested
Murray could do while summoned workers were "on the
wayI in" for their conferences or before their conferences
started. (Summoned as Respondent's witness, Jenks denied,
monosyllabically, that the Union's stewards had requested
permission to meet, behorehand, with their fellow workers
summoned to receive disciplinary suspension notices. Fur-
ther, he denied making any comment that he knew that the
stewards wanted each concerned worker to declare they
had not crossed the February 7 picket line because they
feared for their safety. Upon this record, which, inter alia,
reflects several discrepancies between Jenks' sworn prehear-
ing statement and his witness-chair recollections, his deni-
als, in my view, carry no persuasion.)
Jenks, I find, declared that such protestations would be
ridiculous since Wilshire Boulevard workers had been given
more than one opportunity to cross the February 7 picket
line during his brief periods of observation downstairs and
many had carried signs. With matters in this posture, Mur-
ray summarized their discussion, commenting that Jenks
was refusing to permit the Union's stewards to speak with
their fellow workers before their disciplinary meetings and
further denying their right to talk (luring such conferences. I
find that Jenks concurred. He commented, merely, that
everything Murray and Monroe wished to discuss would
come out during subsequent grievance proceedings, any-
way. On this note their discussion concluded.
Respondent's business office managers then resumed
their conferences with various workers designated for disci-
plinary suspensions. Their conference formats were sub-
stantially comparable.
Respondent's employees previously listed for suspensions
were successively escorted to Jenks' and Sample's offices by
their first-level supervisors. The Union's stewards were,
concurrently or subsequently, requested to join the prospec-
tive conferences. (Murray, so the record shows. sat in dur-
ing most of Sample's meetings with concerned workers.
Monroe sat in during most of those which Jenks conducted.
While a witness, Jenks declared that one customer service
1012
PACIFIC TELEPHONE AND Tl tEL.GRAPH CO.
representative summoned for a conference, specifically.
Lilly Pemberton, for whom the General Counsel seeks no
relief herein, refused union representation. Each steward
was present, however, during some 20 disciplinary confer-
ences.)
After several conferences had been conducted Murray
remained seated in Sample's office. She would, therefore, he
waiting when the next worker summoned arrived, with his
or her supervisor. While a witness, Monroe testified. how-
ever, that she returned to her desk following each confer-
ence, and that some concerned worker's first-level supervi-
sor would then notify her personally, or signal, that her
presence during another conference was desired.
Jenks or Sample would ask concerned workers whether
they knew the reason why they had been summoned: the
workers would be given a chance to reply affirmatively or
negatively. Then, the business office managers would read.
later they may have recited, their previously prepared state-
ment notifying the particular worker present that he or she
would be suspended without pay for I day for participating
in the February 7 work stoppage and that his or her par-
ticular suspension date would be determined within the
next 90 days. Notified employees were then asked whether
they had any questions or had anything they wished to say.
(During these conferences, I find, Murray made no further
efforts to speak, raise questions, or solicit statements regard-
ing the February 7 stoppage. During some conferences,
however, she did raise questions regarding the subsequent
effect which the concerned worker's February 7 failure to
report on time would have on his or her attendance record.
Workers with poor attendance records were told, inter alia.
that their February 7 periods of absence would be desig-
nated "unpaid" and "unexcused" leave and would be con-
sidered proscribed "incidental" absences, which, should
they be subsequently compounded by further unexcused ah-
sences within a 12-month period, could eventually trigger
discipline, specifically bottomed upon their accumulated
"excessive" absenteeism pursuant to company policy.)
Most of those given suspension notices proffered no defen-
sive protestations and raised no questions. During one con-
ference, possibly more, Maureen Monroe tried to question
the worker concerned with regard to February 7 develop-
ments. She was, however, promptly directed to desist. With
matters in this posture, Respondent's successive conferences
were terminated.
At Gower Street, Business Office Manager C(ox con-
ducted four February 9 conferences pursuant to procedural
directives governing union participation comparable with
those followed within Respondent's Wilshire Boulevard fa-
cility. (Cox, while a witness, conceded that District Man-
ager Norvell had told her the Union's representative would
be present during the administration of discipline, that he
could participate to clarify what the discipline was, but that
he should not be permitted to clarify February 7 events.)
The Union's president was there, prepared to speak for
those workers who requested union representation. He re-
quested, so I find, that Cox permit him to confer with Re-
spondent's concerned employees prior to their scheduled
conferences. Such permission, however, was denied. Do),sn-
ing then was seated in the manager's office, while the tour
Gower Street workers scheduled to receive disciplinary sus-
pensions were brought in. singly. Since he was cognizant of
Respondent's ground rules for these disciplinary confer-
ences. he made no efforts to intervene with regard to pro-
scribed subject matter. So far as the record shows, Respon-
dent's four Gower Street conferences were conducted
without significant deviations from District Manager Nor-
vell's defined procedures previously noted.
At Respondent's Wilshire Boulevard facility, some few
workers not present on February 9 were subsequently noti-
fied of their disciplinary suspensions during conferences
conducted on later dates. The present record, however, sug-
gests that these were few in number and generated no spe-
cial procedural problems.
c. Deviatiomns riom routine procedure
Two of the workers summoned b Business Office Man-
ager Jenks, however, proffered statements with regard to
their February 7 behavior when notified of their prospec-
tive suspensions.
One, Greg Golden. reported that he had been given no
advance notice regarding a projected work stoppage: that
when he reached Respondent's Wilshire Boulevard location
pickets were already parading: and that he had noticed the
presence of several union and company representatives.
Golden declared that he had taken no affirmative part in
the stoppage, but had refrained from crossing the picket
line merely because of generalized fears regarding his safety
and his lack of certainty regarding a proper course, com-
pounded by his personal feeling that the line should not be
crossed. Jenks. concededly. responded that Golden had had
opportunities to cross the picket line. while he (Jenks) and
Respondent's district manager had been present do n-
stairs.
When Mary Giarra was called, by Jenks. for her confer-
ence she had a suspicion regarding his purpose and specifi-
cally requested union representation. though not a union
member. Thereupon, when reassured that, despite her non-
membership, Garra could rightfully request a union repre-
sentative's presence, Jenks had Monroe summoned. Their
conference, which followed, proceeded as prior conferences
had. Garra raised no questions. During a subsequent break-
time conversation with Monroe. however, Garra mentioned
her feeling that she had been disciplined severely, without
justification. She claimed that she should not have been
considered a responsible participant in the February 7 work
stoppage since, never having been involved with such a
situation previously, she had been nervous, unsure of her
proper course, and fearful about crossing her fellow work-
ers' picket line. Monroe thereupon advised her that she had
every right to proffer her statement regarding her reasons
for failing to cross the February 7 picket line for Respon-
dent's record. Garra solicited Monroe to request another
conference with Jenks. Monroe did so. When Jenks re-
ceived Garra, pursuant to Monroe's request, he acknowl-
edged his understanding that she had something to add for
the record. She proffered her rationale for failing to cross
the picket line. Jenks promised that her statement would be
noted but commented that it would do her no good. He
declared that she would still suffer I day's suspension.
Upon this note their meeting was terminated.
1013
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. Subsequent developments
On March 3, grievances bottomed on Respondent's disci-
plinary suspension program, were filed on behalf of 43 em-
ployees. Specifically, the Union contended, first, that Re-
spondent's suspension decisions had been too severe and,
further, that specific suspension dates should have been de-
termined for particular workers when the firm's disciplinary
conferences were held. No contention was proffered that
the Union's representatives had been improperly denied
their right to participate in Respondent's disciplinary con-
ferences. (While a witness, Chief Steward Mariani could
not recall whether any designated grievants had contended
that their disciplinary suspensions should not have been im-
posed, in any event, because they had not "participated"
meaningfully during the February 7 stoppage. He conceded
that the Union's representatives had tried to determine
whether any company employee had been suspended erro-
neously. However, he credibly testified that to his knowl-
edge, no grievant had brought forth information reasonably
calculated to suggest that some company worker who had
not really participated during the February 7 stoppage had,
nevertheless, been suspended.)
These grievances were subsequently pursued through
several levels. None was resolved, so far as the record
shows, favorably to the Union's contentions. They were,
then, transmitted to the Union's parent organization for
some higher level decision with respect to whether they
should be taken to arbitration. However, for reasons which
have not been delineated within the present record, pursu-
ant to my suggestion, none of the filed grievances has been
arbitrated.
C. Discussion and Conclusions
1. Determinative principles
This Board has held, with judicial concurrence, that em-
ployees summoned by management representatives for dis-
ciplinary interviews have a statutorily guaranteed right to
request union representation, which must then be granted
during such confrontations whenever they have reasonable
grounds for belief, measured by objective standards, that
discipline may result. N.L.R.B. v. J. Weingarten, Inc., 420
U.S. 251, 256-257, 260 (1975); Quality Manufacturing Com-
panv. 195 NLRB 197 (1972); Mobil Oil Corporation, 196
NLRB 1052 (1972). Once employees have requested a
union representative's presence, their concerned employer
has a choice; management representatives may proceed to
conduct planned interviews with a union representative
present or they may refrain from conducting such inter-
views while dispensing discipline without them. N.L.R.B. v.
Weingarten, Inc., supra at 258. Should the concerned em-
ployer, however, require employees to attend projected in-
terviews without union representation, their Section 7 rights
will have been flouted. Id. at 264: see also International
Ladies' Garment Worker's Union, Upper South Department,
AFL CIO v. Quality Manufjcturing Co., 420 U.S. 276, 280
281 (1975), in this connection. The right to request union
representation, so this Board holds, inheres in Section 7's
guarantee of employees' rights to pursue concerted action
for mutual aid and protection.
The statutory right now under consideration, however.
arises solely in situations wherein employees have requested
representation. N.L.R.B. v. Weingarten, Inc., supra at 257.
Furthermore. the concerned worker's exercise of his statu-
tory right, so the Supreme Court noted, cannot "interfere"
with "legitimate" employer prerogatives. Inter alia, the
Court concurred with this Board's view at 258 259:
. . the employer is free to carry on his inquiry without
interviewing the employee .... As [the Board] stated
in Mobil Oil. "The employer may, it it wishes, advise
the employee that it will not proceed with the inter-
view unless the employee is willing to enter the inter-
view unaccompanied by his representative. The em-
ployee may then refrain from participating in the
interview .. the employer would then be free to act on
the basis of information obtained from other sources."
Implicitly, the Board's construction of the statute, charac-
terized as "permissible" within the Supreme Court's Wein-
garen decision, suggests a corollary decisional principle:
Should a concerned employer's management representative
prefer to eschew structured "interviews" which employees
might reasonably consider calculated to jeopardize their job
security-during which they could request a union repre-
sentative's presence the firm's management may. without
regard for statutory restraints. dispense with such "inter-
views" completely. (See Mobil Oil Corporation, supra, fn. 3.
therein; the Board noted that whenever employees refuse to
participate in protected interviews without union represen-
tation concerned employers remain free to impose disciplin-
ary suspensions or discharges without the presence of union
representatives whenever such disciplinary actions are
taken without prior discussions or consultations with their
affected workers. Compare Quality Manuicturing Cornm-
pam. supra at 199. to the same effect.) C(onsistent with this
view, first proffered as dictum, the Board has recently so
held. See Amoco Oil Compan, 238 NLRB 551 (1978), in
this connection. Therein, 8(a)(1) charges were dismissed
when the Board found that, following a worker's repeated
declarations that he would not talk with anyone without
first seeing a union representative, the respondent emplo'-
er's supervisor had dispensed with a projected disciplinary
interview and had succinctly notified the concerned worker
merely that he was being suspended.
2. Contentions of the parties
In Weingarten, the Supreme Court noted that this
Board's considered specification of parameters calculated to
define the rights of concerned workers to request union rep-
resentation during investigatory interviews reflects its per-
missible administrative reappraisal of prior decisional doc-
trines prompted by perceptions with respect to changing
patterns of industrial life. And, the General Counsel con-
tends, herein, that the Board's continued "evolutional ap-
proach" bottomed upon "cumulative experience" within
this field has, permissibly, generated decisions wherein the
rights of workers to request union representation have,
since its previous essay, been both expanded and clarified.
See, e.g., Certijied Grocers of California, Ltd. 227 NLRB
1211 (1977). enforcement denied 587 F.2d 449 (9th (Cir.
1978). Therein, the Board found that workers have a statu-
1014
PACIFIC TEI.FPHONE AND) TELEGRAPH CO.
tory right to request union representation, when subjected
to planned interviews which may put their job security in
jeopardy. even when such conferences are not conducted
"for the purpose of eliciting facts or permitting the em-
ployee to explain or defend his conduct .. ." but merely to
notify the worker concerned regarding a disciplinary deci-
sion already made. In this connection. confronted with a
stipulated record, the Board found (277 NLRB at 1212)
that:
Vaughan believed he was going to be disciplined by
Riddle.... Vaughn asked to have his shop steward
present. Riddle denied the request stating that the
steward's presence would not be necessary. Riddle told
I'aughn that Respondent had reviewed his work perlrnl-
ancee records, that his work had not improved that Ins
work was still unsatisfactory, and that he was issuing hon
a warning and disciplinar, lavo f notice. Vaughn again
requested to have his shop steward present and alo,
demanded to see his performance records; Riddle denied
both requests. Riddle signed the disciplinary layoff no-
tice and handed it to Vaughn. aughn stated that hlc did
not know what the Respondent wanted from him, and
Riddle replied that all he wanted was the job to he d one
and that Vaughn should take 2 weeks to think about it
.... [Emphasis supplied.]
The Board noted, upon this record, that during their meet-
ing Certi/eds supervisor had engaged in some discussion
with a worker concerning his work. It found that the super-
visor had therefore performed something more than a sim-
ple "ministerial" function, since he had neither signed the
concerned worker's disciplinary notice nor handed it to him
before their "discussion" concluded. With matters in this
posture the Board held that a planned "interview" had, es-
sentially, been conducted wherein W4eingarten principles
had been flouted.
The General Counsel contends that Respondent's confer-
ences with its Wilshire Boulevard and Gower Street work-
ers during which they were notified regarding their disci-
plinary suspensions were "virtually identical in nature"
with the limited interview which Certieds supervisor had
conducted. He seeks a determination, therefore, that Re-
spondent's workers should have been permitted effective
union representation. Since the General Counsel's repre-
sentative contends, such representation was denied, the
General Counsel seeks a determination that Respondent's
course of conduct should be considered statutorily pro-
scribed.
Respondent contends to the contrary that conferences
between management representatives and concerned work-
ers convened "solely for the purpose of announcing disci-
pline" do not require a union representative's presence:
consequently, when the Union's stewards were forbidden to
discuss or probe any concerned worker's degree of partici-
pation or nonparticipation in Respondent's Februar, 7
work stoppage, during their separate Februar, 9 conter-
ences with management convened for that limited disciplin-
ary notification purpose. no statutory mandate Ba as. so Re-
spondent's counsel suggest. lolated. (In their rief.
Respondent's counsel contend that the Supreme ( uit
,Aithin its W'tengartln diecision dealt. specificalkx. wnkh
clear "investigatory interview" situation: that it noted the
right of concerned employers to forego such investigatory
interviews, while taking whatever action they might con-
sider necessary based on information derived from other
sources: and that the Court further suggested its concur-
rence with the Board's Mobil Oil dictum confirming a con-
cerned employer's freedom to impose disciplinary suspen-
sions or discharges, without a union's presence, whene,er
such disciplinary sanctions have been levied without prior
"discussions" or "consultations" with affected workers.)
In this connection. particularly. Respondent relies on this
Board's A4moco Oil ('om npan decision, previouslx noted
Therein, 8(a)( ) charges were dismissed: Certified Grocers
was distinguished and found inapposite, specifically be-
cause Amoco's superintendent -when confronted with de-
mands for a union steward's presence had "lawfully exer-
cised his option to dispense with the interview" which he
had, presumably, wished to conduct. The Board noted that:
[Superintendent Gadus] made no attempt to question
[the concerned worker], engage in any manner of dia-
logue, or participate in any other interchange which
could be characterized as an interview.
In this connection, this Board commented, bh way of con-
trast, that Certrfieds plant manager. following his refusal to
summon a concerned worker's shop steward pursuant to
request, had: "proceeded nevertheless with the planned in-
terview. discussing the employee's work record and com-
menting negatively thereon.... (238 NLRB at 552.) The
Board noted that disciplinary sanctions had then been im-
posed, and that "further conversation" had ensued. The
Board found that no such conversation had taken place
when A.rocos superintendent dispensed discipline.
Relying on the distinction noted. Respondent suggests
that since Business Office Managers Jenks. Sample, and
Cox had merely conducted conferences wherein discipline
was announced, without trying to investigate the February
7 work stoppage and without questioning concerned work-
ers with respect thereto, this Board's recent Am4roc Oil deci-
sion should be considered the determinative precedent.
warranting dismissal herein.
3. Discussion
learly, Respondent's more than 40 Wilshire Boulexard
and Gower Street workers. when summoned for the Febru-
arN 9 conferences with their respective second-level supervi-
sors. had reasonable grounds for belief that they faced dis-
cipline for their presumed participation in the Februar 7
short-lived work stoppage. Respondent proffers no contrar
contention. (On February 8 the Union's president had been
notified with regard to Respondent's corporate-level deci-
sion that workers considered work stoppage participants
would be given disciplinary suspensions. President Down-
ing had thereafter requested the nion's chief steward to
make himself available within Respondent's Wilshire Bou-
levard facility to participate in management's projected
conferences swherein coiicerne d workers ould he notified
reg;arding their prospective suspensions While a sitmcss.
( 'hiet Stewardt Marian conceded lll he had reached that
facilit siho rt[ hc/lre' Business O()tice Maniger Jenks hegan
sli nlnetltlŽn a ,rkers fto.rdlt'irp i r Ioi!tiColilln I hgich
1015
DE('ISIONS OF NATIONAL LABOR RELATIONS BOARD
Mariani could not "remember" whether he had spoken
with any workers before he participated in Jenks' first con-
ference, various witnesses, whose testimony I credit in this
connection, claimed they had seen him in conversation with
several customer service representatives. With matters in
their present posture, I would certainly consider a deduc-
tive inference warranted that Mariani would have had op-
portunities during such conversations to describe the reason
for his presence and that he probably did so.)
When summoned for Respondent's first disciplinary con-
ference, Customer Service Representative Moranski may
not have known precisely what sort of discipline Respon-
dent's management had in mind. There can be no doubt.
however, that she expected discipline; when asked whether
she knew why she had been summoned, Moranski replied
that she "guessed" she did. The record shows that shortly
thereafter, reports that Respondent's business office manag-
ers were, indeed, notifying presumed participants in the
February 7 work stoppage of their prospective suspensions
spread throughout the Wilshire Boulevard staff. Employees
summoned for conferences thereafter certainly had reason-
able grounds for belief that they would be disciplined.
Considered in totality, the record provides little direct
evidence that Respondent's 40-plus Wilshire Boulevard and
Gower Street workers with possibly a single exception. spe-
cifically requested union representation during their disci-
plinary conferences. There can be no doubt, however, that
Respondent's management representatives, consistent with
their firm's contractual commitment to permit a union rep-
resentative's presence during "any meeting .. . in which
discipline . . . is to be announced" should the concerned
employee so request, were prepared to concede President
Downing's and Chief Steward Mariani's right to be physi-
cally present during their projected conferences. Following
Mariani's departure. they permitted Murray and Monroe to
sit in while Respondent's various workers were notified with
regard to their prospective suspensions. The record war-
rants a determination, which I make, that both managers
believed proper, contractually mandated requests for a
union representative's presence were routinely being made
when their subordinates designated for prospective suspen-
sion were being summoned for notification with respect
thereto. At one point, Sample particularly so stated. Fur-
ther, within their brief, Respondent's counsel substantially
conceded that requests for union representation were being
made. They cite undisputed testimony that representatives
were permitted to be present during disciplinary confer-
ences whenever concerned employees had so requested. For
present purposes, proper requests by concerned workers for
union representation, timely made, may be, within my
view, considered conceded. Respondent raises no contrary
contention. With due regard for the record, therefore, this
Board's requirement, shapd within its Quality Manuftcltur-
ing and Mobil Oil decisions and confirmed within the Su-
preme Court's Weingtrten decision, that a statutorily
grounded right to union representation must be recognized
solely in those "interview" situations where the concerned
worker requests it, may properly be considered satisfied.
In Weingarten. however, the Supreme Court noted its
concurrence with this Board's view that during "investiga-
tory" interviews, which the Board had within certain prior
decisions distinguished from "disciplinary confrontations.
concerned employers need not bargain with any union rep-
resentatives present. Such representatives may legitimately
be limited to providing "assistance" merely for concerned
workers. They may, in that connection, participate to "clar-
ify the facts" with respect to matters being investigated.
More particularly, the Court declared that:
The Board's construction also gives recognition to
the right when it is mot uscfi to both employees and
employer. A single employee confronted by an em-
ployer investigating whether certain condutl deservev dic.-
cipline may be too fearful or inarticulate to relate accu-
rately the incident being investigated. or too ignorant to
raise extenuating actIors. A knowledgeable union rep-
resentative could assist the employer by eliciting favor-
ablefiluts, and save the employer production time hi'
getting to the bottom of the incident occa.sioning the in-
terview. . [R]espondent would defer representation
until the filing of a formal grievance challenging the
employer's determination of guilt after the employee
had been discharged or otherwise disciplined. At that
point, however, it becomes increasingly' difficult for the
employee to vindicate himself', and the value of repre-
sentation is correspondingly diminished. he employer
may then be more concerned with justifying his actions
than re-examining them. [Emphasis supplied. 420 li.S.
at 262.264.]
These comments clearly reflect the Court's concurrence
with this Board's view that whenever interview situations
arise wherein employees have reasonable grounds to believe
that the matters to be discussed may result in their subse-
quent discipline those employees have a statutorily defined
right to request and receive "effective" representation.
Their right to request a representative's presence necessarily
carries a correlative right to benefit from such a representa-
tive's "participation" when matters likely to threaten their
job security are raised. How ever union representatives.
permitted to he present during interviews but constrained
to function as mere observers while management spokes-
men discuss particular incidents with concerned workers,
clearly cannot provide such workers with that meaningful
"aid or protection" which, pursuant to statute, they have
rightfully sought. Necessarily, therefore. whenever union
representatives, summoned pursuant to some concerned
worker's request, have been commanded to silence, specifi-
cally with respect to discussions between management
spokesmen and that worker concernirg the particular inci-
dent which may have generated the confrontation, the
worker's Weingarten right will have been thereby denied.
This Board has further recognized that Weingarten' pro-
vision for the right of concerned workers to request a union
representative's presence. during investigatory-disciplinary
"interviews" confrontations which may result in disciplin-
ary action, cannot be implemented properly without some
assurance that such a union representative will be afforded
some opportunity to consult beforehand with the workers
concerned, to learn their version of relevant developments
and gain familiarity with the facts. ( ima.x Molvbdemnun
Componv. a Diti.viso,m o .m. na ., 227 NI.RB 1189. 1190
(1977), enforcement denied 584 F.2d 360 ( th ('ir. 1978}.
T'hus. whenever a collective-bargaining contract between
the parties prov ides for union representation during iesti-
1016
PACIFIC TELEPHONE AND TEIEGRAPtH CO.
gatory-disciplinary interviews, the denial of the right to
prior consultation upon the union's request constitutes a fur-
ther denial of rightfully "effective" representation which the
statute mandates. (In Climax Molybdenum, the Court of
Appeals for the Tenth Circuit, though it refused to enforce
the Board's order, nevertheless commented that Weingarten
requires employees to set "investigatory interviews" at fu-
ture times and places which will permit employees to con-
sult with their representatives beforehand on their own
time.)
If, therefore, Respondent herein denied Wilshire Boule-
vard and Gower Street workers "effective" representation
with respect to matters discussed during various "inter-
view" confrontations, the General Counsel's contention
that such workers were denied Weingarten rights should be
sustained.
With matters in their present posture, then, determina-
tions with respect to whether Respondent's management
representatives flouted this Board's Weingarten mandate
during their February 9 conferences with various Wilshire
Boulevard and Gower Street workers will, essentially, de-
pend on whether they were denied effective representation
during "interviews" conducted for disciplinary purposes.
In Certified Grocers, the Board found that a cognizable
"interview" had been conducted because the concerned em-
ployer's plant manager had "discussed the employee's work
record" while "commenting negatively" with respect
thereto. The Board noted further that, subsequently, disci-
plinary sanctions had been imposed and further "conversa-
tion" followed. In Amoco Oil, the Board concluded, how-
ever, that the concerned supervisor had dispensed with a
presumptively planned interview completely by confining
himself to a single sentence notifying the concerned worker
of his suspension. The Board's decision noted that the disci-
plined worker's supervisor had not tried to question him
and had neither "engaged in any manner of dialogue" nor
"participated in any other interchange" which could rea-
sonably merit "interview" characterization.
Herein, therefore, some determination would seem re-
quired with respect to whether the February 9 conversa-
tional exchanges between Jenks, Sample, and Cox, on the
one hand, and their subordinates, on the other, were con-
cerned with "discussions" of their participation in the Feb-
ruary 7 work stoppage, whether they maintained some
"dialogue" with respect thereto, or whether their "inter-
changes" sufficed to create a situation wherein some mean-
ingful participatory role for the Union's stewards should
have been recognized. Should a determination be found
warranted that Respondent's management representatives
never contemplated "interviews" with workers considered
candidates for suspension, and that their conversations with
such workers never developed into cognizable "interviews"
following their commencement, the General Counsel's com-
plaint bottomed upon Weingarten, Quality Manufacturing.
and Mobil Oil principles could not be considered sustained.
Compare Chrysler Corporation, Hamtramck Assembly Plant,
241 NLRB 1050, 1054 (1978). in this connection.
In K-Mart Corporation, 242 NLRB 855 (1979), this Board
considered whether union representatives had been improp-
erly excluded from certain disciplinary sessions during
which concerned workers were notified of disciplinary mea-
sures which had been decided upon prior thereto. With re-
spect to these sessions, Administrative Law Judge Silber-
man found that a management representative. relying on
reports by supervisors, had decided to give certain workers
warning notices: that these workers had been summoned hb
the management representative: that their request for some
union steward's presence had been denied: and that their
sessions had thereupon proceeded:
Michael Blevins. "... Coffelt informed Blevins that his
production had been low .. . 'Coffelt said we are giving you
a written reprimand. Blevins said ou told me in the past
you would talk to the person first, then give a ritten-verbal
warning. Coffelt merely replied he didn't have to do it that
wariy.
Kenni, Pontius: "... Coffelt started talking about his pro-
duction. Pontius' request for union representation was then
denied]. Pontius then received a written warning for los
production."
Richard Hibner "... Coffelt told Hibner it was obvious
he had joined in the slowdown. Hibner stated he didn't
know for sure if there were a slowdown. Coffelt pushed a
written warning notice over to Hibner and asked him to
sign it. Hibner refused...."
John Lowe: ". . . Lowe protested to Coffelt that his pro-
duction had not been low . . . and asked to see the master
production sheets. Coffelt denied the request and gave
Lowe a written warning. Lowe then entered into a discus-
sion with Coffelt about whether the Company was violating
the [prior Board-approved] settlement agreement. and in
that connection Manager Fisher was called into the meet-
ing. Fisher refused to discuss the matter with Lowe .... "
With respect to certain other workers. Administrative
Law Judge Silberman made further factual determinations.
Relevant excerpts from his Decision with respect thereto
show:
Robert erlezza: . [O]n December 7 ... 'arrabee told
Verlezza he had been late five times in the month of No-
vember. Verlezza asked for a union steward. Larrabee said
he did not need one this was only a warning. Verleua :;sked
if this was a writeup and if three writeups would mean his
termination. Larrabee said that was right.... Verlezza was
given a warning slip...." "'On December 27. 1977 ...
[Production Control Manager] Johnson informed Verlezza
he had gone over the fraction of hours allowed him under
the 80-hour rule. Verlezza asked for a union steward i he
was entitled to one. Johnson did not respond.... Verlezza
then tried to explain the circumstances regarding his being
late. Verlezza was terminated.'"
Scott Montgomerv: ". . 'When Montgomery entered the
office [Personnel Manager] Dickey said. "Scott I thought
you were going to make it." Montgomery asked why he was
being fired. Dickey said he had gone over his time. Mont-
gomery stated he was never told this rule and wanted to see
it. Dickey pulled out a rule book.... Montgomery asked
why he never got the rule book. Dickey said the company
was in contract talks with the union and they were out of
rule books .... '"
John Albers: ". . . When Albers arrived in the office he
asked for a union steward, which request was denied. Then.
according to Albers. Coffelt 'asked if I had anything else to
say and I noticed . . . a writeup pad on his desk. and said.
"Well, it looks like you have already made up sour mind no
matter what I say." He said, "Yes." and turned over the
1017
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
writeup pad which was filled out stating the fact that I was
written up for insubordination. He asked if I would sign the
writeup slip. I said, "No." He then informed me that this
was the third writeup and that I was terminated.'"
Upon this record, Administrative Law Judge Silberman
concluded that the several factual situations presented for
his determination "more closely resembled" those in Amoco
Oil than the situation considered in Certified Grocers. Ac-
cordingly, he recommended dismissal with respect to the
General Counsel's complaint allegation that Section 8(a)(l)
had been violated when various employees-particularly
those noted within his decision-were denied union repre-
sentation during their disciplinary confrontations with
management representatives. The Board concurred.
In this case, having considered, the persuasive relevance
of the above-cited K-Mart Corporation exemplars, I con-
clude, likewise, that Respondent's serial conferences with
Wilshire Boulevard and Gower Street personnel, during
which they were notified of their prospective suspensions,
severally resemble Amoco Oil's factual situation more
closely than they resemble Warehouseman Vaughn's dis-
cussion with his superior in Certified Grocers.
Respondent's corporate management, so the record
shows, had reached its decision to discipline those it consid-
ered participants in the February 7 work stoppage-based
upon information which the firm's lower-level supervisors
had, themselves, procured-without permitting the employ-
ees considered for discipline to defend themselves or re-
quest possible exculpation beforehand. More particularly,
Respondent's management had decided, unilaterally, that
participants in the stoppage would be disciplined uni-
formly, whether their personal participation had been pur-
posefully active, merely passively acquiescent, or possibly
grounded in some confusion which had immobilized them.
While such across-the-board discipline may have been, in
some cases, unfair, it can hardly be considered statutorily
proscribed.
When Respondent's business office managers thereafter
summoned Wilshire Boulevard and Gower Street person-
nel, whom Respondent had decided to discipline for succes-
sive conferences, they neither initiated, invited, nor partici-
pated in discussions, dialogue, or conversational
interchanges which could legitimately be considered "inter-
views" within Weingarten's decisional rubric. (Of course,
Jenks, Sample, and Cox did query each worker summoned
with respect to whether they knew why they had been
called. Such questions, however, were clearly never calcu-
lated to invite discussions with respect to the February 7
work stoppage or some particular worker's participatory or
nonparticipatory role therein. They were, I find, purely pro
forma queries designed to set the stage for Respondent's
planned announcement regarding the worker's prospective
discipline. The record, within my view, fully warrants a fur-
ther determination that they were so understood. Following
their announcements with regard to prospective disciplin-
ary suspensions, Respondent's business office managers did
query various concerned workers with respect to whether
they had any questions, or had anything they wished to say.
Clearly, however, such questions were merely calculated to
provide such concerned workers with opportunities to seek
clarification regarding the nature and scope of their disci-
pline, the circumstances under which their prospective sus-
pensions would be directed, and the possible future conse-
quences of Respondent's disciplinary decision. They did not
invite dialogue regarding the merits of Respondent's sus-
pension determinations. Compare K-Mart Corporation, su-
pra, with particular reference to the warning notices given
Blevins and owe, Verlezza's warning notice, and Albers'
termination, in this connection.)
Respondent's willingness to provide concerned workers
with clarifications, when requested, specifically with respect
to management's prospective rendering of disciplinary sus-
pensions, while permitting complainant Union's stewards to
participate in such clarifying discussions, cannot, within my
view, reasonably be construed as readiness to discuss the
February 7 developments which had occasioned their disci-
plinary conferences.
In this connection, however, the present record, with ret
erence to Business Office Manager Jenks' conferences with
Greg Golden and Mary Garra particularly, raises several
questions. When Golden volunteered a statement purport-
edly descriptive of his February 7 course of conduct, which
he presumably hoped Respondent's management would
consider exculpatory, Jenks concededly commented respon-
sively. Further, when Garra requested a second conference
session, during which she proposed to state her rationale for
failing to cross the February 7 picket line, Jenks permitted
her proffer, promised that her statements would be noted,
but declared that, nevertheless, her prospective I-day sus-
pension would not be waived. Did these clear-cut devi-
ations from Respondent's previously planned routine, with
respect to notifying concerned workers of their prospective
suspensions, taint management's course of conduct suffi-
ciently to warrant determinations that throughout cogniza-
ble interviews had really been conducted? No such conclu-
sion, within my view, would be warranted. Compare K-
Mart Corporation, supra, with particular reference to the
conversational exchanges which preceded Hibner's, Lowe's,
Verlezza's, and Montgomery's discipline, in this connection.
Alternatively, did Respondent's business office manager
thoughtlessly permit "interviews" to develop, during his
conferences with Golden and Garra particularly, suffi-
ciently to warrant post facto determinations that, with re-
spect to them, statutorily validated rights to request and
receive "effective" union representation had been denied?
Upon this record, Golden and Garra should not be consid-
ered, within my view, fortuitously qualified to claim depri-
vations of rights which their fellow workers cannot, like-
wise, claim. Respondent's business office manager, when he
permitted them to present purportedly exculpatory state-
ments, precipitated no discussion, dialogue. or conversational
interchange which could "get to the bottom of the incident"
which had generated their disciplinary suspensions. True,
he listened courteously; he reacted, however, with com-
ments calculated to foreclose discussion. When concerned
employers have, for reasons which, consistently with "legiti-
mate" prerogatives, they consider sufficient, determined to
dispense discipline without consulting the workers sched-
uled for such discipline beforehand, and without permitting
their union representatives to participate meaningfully dur-
ing purely disciplinary conferences, their mere willingness to
listen, while some disciplined workers protest, cannot retro-
spectively subject their course of conduct to statutory pro-
scription.
1018
PACIFIC TELEPHONE AND TEI.EGRAPH CO.
Having concluded that Respondent's disciplinary confer-
ences with various Wilshire Boulevard and Gower Street
employees could not, properly, have been considered "in-
terviews" with respect to which Weingarten rights should
have been granted. I find the General Counsel's further
contention-that Respondent's failure to allow union repre-
sentatives opportunities for consultation with concerned
personnel. beforehand, deprived those workers of some
right statutorily guaranteed likewise deserving of rejec-
tion.
IV. P()SISCRIPI
My conclusions herein that Respondent's challenged
February 9 course of conduct flouted no statutory mandate,
derives from my construction of this Board's current deci-
sional doctrines concerned with the parameters within
which Weingarten principles should be considered determi-
native. The precise questions presented. however, can
hardly be considered well settled. This Board, when re-
quested to review my dispositions, may conceivably con-
strue its prior decisions differently, while concluding that
Respondent's conduct merits proscription. Prudence sug-
gests, therefore, that some consideration should be given a
further question-concerning possibly appropriate rem-
edies herein-should the Board differ with my conclusions
previously noted.
Within his brief, the General Counsel's representative
suggests that, should Respondent be found responsible for
the specific unfair labor practices herein charged, this
Board's remedial directives should require rescission with
respect to the suspensions which all Wilshire Boulevard and
Gower Street workers considered participants in the Febru-
ary 7 work stoppage, whether named within the present
complaint or not, received, coupled with make-whole com-
pensation for the day's pay which those workers presum-
ably lost. The General Counsel cites Certified Grocers of
California, Ltd., 227 NLRB 1211 12, 1215 (1977). reversed
on other grounds 587 F.2d 449 (9th Cir. 1978): Southwest-
ern Bell Telephone Company, 227 NLRB 1223, 1224. 1226
27 (1977); compare Potter Electric Signal Compan, 237
NLRB 1289, 1291 (1978). cease-and-desist orders enforced
but reinstatement and backpay orders denied enforcement,
600 F.2d 120 (8th Cir. 1979): Anchortank, Inc.. 239 NLRB
430, 434 (1978), in this connection. Respondent's counsel
suggest, however, that rescission and backpay directives
herein cannot be justified. since Section 10(c) of the statute,
inter alia, provides that:
No order of the Board shall require the reinstatement
of any individual . . . who has been suspended . . . or
the payment to him of any back pay, if such individual
was suspended ... for cause....
In this connection. Respondent contends that, since various
employees received -day suspensions without pay solely
because of their presumed participation in the February 7
nonsanctioned work stoppage, compliance with the General
Counsel's remedial recommendations should be considered
beyond the scope of the Board's remedial powers.
Upon this record, I find merit in Respondent's conten-
tion. The Supreme Court has declared, within a signifi-
cantly different factual context, that nothing in Section
i0(c)'s legislative history indicates that it was designed to
curtail the Board's power to fashion remedies, when losses
of employment "stem directly" from unfair labor practices
found. Fibreboard Paper Products Corp. v. N.L.R.B., 379
U.S. 203, 217 (1964). In this case, however, no contention
could reasonably be proffered that Respondent's determi-
nation to preclude complainant Union's representatives
from meaningful participation throughout its projected
February 9 series of disciplinary conferences played any
substantial role in management's February 8 decision to
decree -day suspensions for presumed participants in the
February 7 work stoppage.
Assuming, arguendo, that Respondent's persistence in de-
nying concerned workers "effective" union representa-
tion during their February 9 conferences with manage-
ment representatives-constituted an unfair labor practice,
the suggestion that Respondent's prior February 8 corpo-
rate-level decision to suspend such workers without pay
stemmed directly from statutorily proscribed conduct car-
ries no persuasion. (In several cases. briefed to courts of
appeals, the Board has argued that a concerned employer's
refusal to permit union representation during 'interviews"
arguably prevented discussions during which representa-
tives of concerned workers could have raised extenuating
circumstances, which might have convinced the respondent
firm involved not to impose discipline. When the record,
however, shows first, that a high-level corporate decision
with respect to discipline was reached: second, that lower-
level supervisors, without discretion to waive any disciplin-
ary sanctions or mitigate their severity, were delegated to
notify concerned employees with respect thereto: and third,
that these lower level supervisors, during subsequent confer-
ences, precluded union representatives from meaningful
participation, while, arguendo, permitting nonplanned "in-
terview" situations to develop: speculative suggestions
that union representatives, permitted to participate therein
might have convinced the concerned employer to mitigate
or waive discipline for certain workers can hardly be con-
sidered sufficiently persuasive to warrant determination
that their disciplinary suspensions "stemmed directly" from
some improper denial of Kleingarten rights.)
Nothing within the present record suggests that Respon-
dent's Wilshire Boulevard and Gower Street employees
were notified with regard to prospective discipline or that
they were otherwise disadvantaged because they sought
union representation or for the purpose of discouraging
them from seeking such representation during disciplinary
conferences in future. Compare 4moeo Oil supra, at 553. in
this connection. Rather, determinations have been found
warranted, herein, that Respondent's concerned workers
were given suspension notices consistent with a manage-
ment decision reached prior to those conferences during
which "interview" situations may. arguendo, have devel-
oped and that identical suspension notices, predicated upon
their presumed participation during a single work stoppage.
were given them all. Respondent's later determinations.
with respect to when particular workers would be sus-
pended. have, herein, been challenged as tinged with favor-
itism. No charges have been made, however, that such de-
terminations were based on considerations related to some
requests by particular workers for union representation.
1019
DECISIONS OF NATIONAL. ILABOR RELATIONS BOARD
Upon this record, further, the General Counsel's sugges-
tion, that a make-whole remedy, predicated upon a finding.
herein. that Respondent's workers were denied their Wein-
garten rights, should be considered necessary to restore the
status quo ante, merits rejection. (This Board has not, rou-
tinely, directed a reversal of discipline imposed. whenever
some denial of Weingarten rights has been found. Compare
Climax Molyvhdenum, supra,' The Detroit Edison (Companv,
218 NLRB 61 (1975); Mobil Oil Corporation, supra, in this
connection.)
No showing has been made herein that Respondent disci-
plined concerned woikers or that the severity of their disci-
pline was increased, consequent upon Respondent's deter-
mination to deny them "effective" union representation,
during disciplinary confrontations which had, arguably, be-
come "interviews" with respect to which Weingarten rights
should have been granted. Herein, rescissions of discipline
therefore would not merely restore the status quo ante some
unftir labor practice found: they would restore the status
quo ante management's disciplinary decision. with respect
to which the General Counsel proffers no statutorily
grounded challenge. Such relief Section 10(c) would pre-
clude, within my view.
Upon the foregoing findings of tact, conclusions of law.
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORI):R
The complaint is dismissed in its entirety.
In the event no exceptions are tiled as provided b 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 Regulations, be adopted b the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
swaived for all purposes.
1020