Southwestern Bell Telephone Co.

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 612 (N.L.R.B. 1980)

612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Southwestern Bell Telephone Company and Commu-
nications Workers of America, Local 12222,
AFL-CIO. Cases 23-CA-7024, 23-CA-7072,
and 23-CA-7157
August 27, 1980
DECISION AND ORDER
On August 21, 1979, Administrative Law Judge
Marion C. Ladwig issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel, joined by the Charging Party, filed limit-
ed exceptions and a supporting brief.
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, find-
ings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The Administrative Law Judge found, inter alia,
that the Respondent: (1) violated Section 8(a)(l) of
the Act by requiring employee Gottschalk's union
steward to remain silent during an investigatory in-
terview concerning Gottschalk, thereby depriving
him of his union representative's counsel and assist-
ance during the interview; (2) did not violate Sec-
tion 8(a)(l) by allegedly depriving employee
Brooks of union representation at an interview at
which she was informed of her discharge; and (3)
did not violate Section 8(a)(5) by refusing to fur-
nish the Union with copies of certain documents
from employee Martin's personnel file without
Martin's written request. The Respondent has ex-
cepted, inter alia, to the Administrative Law
Judge's finding that it is not permitted to require a
union representative to remain silent during an in-
vestigatory interview of an employee. The General
Counsel has excepted to the Administrative Law
Judge's finding that Brooks was not denied union
representation at the interview at which she was
informed of her discharge, as well as to the finding
that the Respondent was not required to furnish
the Union with certain documents from Martin's
personnel file. In addition, the General Counsel has
excepted to the Administrative Law Judge's failure
to order the Respondent to offer Gottschalk rein-
statement and backpay as a result of the unlawful
denial of union representation found by the Admin-
istrative Law Judge. We find no merit in the Re-
spondent's exception nor in the General Counsel's
exception regarding the denial of representation to
Brooks, for the reasons discussed below. However,
we do find merit in the General Counsel's excep-
tion to the Administrative Law Judge's failure to
find a violation of Section 8(a)(5) for the refusal to
furnish the Union with the requested information
from Martin's personnel file, and to the failure to
251 NLRB No. 61
order the reinstatement and backpay of Gottschalk,
for the reasons discussed below.
As more fully set forth in the Administrative
Law Judge's Decision, the facts concerning Gotts-
chalk indicate that the Respondent arranged for a
meeting with Gottschalk in order to question him
about certain property which had been stolen from
the Respondent. The meeting was attended by
Gottschalk, Hataway (first line supervisor), Garner
(third line supervisor), and Hubbard (security su-
pervisor). When Hubbard displayed the stolen
property (which had been recovered from a pawn
shop) and began asking Gottschalk about his in-
volvement in the alleged theft, Gottschalk request-
ed union representation. Union Steward McQuiller
was called in and informed of the allegations
against Gottschalk. Hubbard then informed
McQuiller that he did not want him to say any-
thing, and that he wanted Gottschalk to answer in
his own words.' Hubbard then questioned Gotts-
chalk further, informing him that if he did not con-
fess to stealing the property he would be arrested
by a policeman who was already on his way to the
Respondent's offices.2 Gottschalk became very
upset and began to cry, and shortly thereafter he
confessed to the theft of the Company's property
as well as to several other thefts of company prop-
erty. After a written confession was signed, Hub-
bard asked McQuiller if had anything to say.
Thereafter, Garner suspended Gottschalk, pending
termination.
The Administrative Law Judge found that by re-
quiring the union steward to remain silent through-
out Gottschalk's interview the Respondent had re-
duced Gottschalk's right under the Supreme
Court's decision in N.L.R.B. v. J. Weingarten, Inc.3
to the mere presence of a union representative
rather than the assistance of that representative
during the interview. The Administrative Law
Judge relied upon repeated references in the Wein-
garten decision to the statutory right of employees
to seek the assistance of their statutory representa-
tive at investigatory interviews which the employ-
ee reasonably fears may result in his discipline. The
Administrative Law Judge specifically noted the
Supreme Court's extensive elaboration on the role
to be played by a statutory representative during a
i ubbard cstified Ihat he intended his staternerlt t McQuiller o
mean that McQuiller could lnot ask any questions until the intlcrr iev with
(iottschalk Aas oecr. but that McQuiller ".a, free to seek clarificalions
during the illtcrvle.. Hubbard also lestified that flloVl.ing his tatement
Io McQuiller iht latler said lothilig during and after the interiev
Although a policenaln as it) I act onl his as I t he Respi dent's
offices v hil the tlllntcer.l. v ss Il progress. the Respondcllt had decided
prior to the ilterl IC 101 to file crinailal charges againt (ilottschalk
i 420) LI S 251 (1q751
SOUTHWESTERN BELL TEL.-HEIPONE COMPANY 61
Weingarten interview.4 Nevertheless, the Respond-
ent asserts herein, as it did before the Administra-
tive Law Judge, that the Supreme Court intended
to permit employers to demand the silence of a
statutory representative during an investigatory in-
terview when the Court stated that "[t]he employ-
er . . . is free to insist that he is only interested, at
that time, in hearing the employee's own account
of the matter under investigation." 5 However, the
Administrative Law Judge noted that immediately
preceding that statement the Supreme Court stated
that:
The employer has no duty to bargain with the
union representative at an investigatory inter-
view. "The representative is present to assist
the employee, and may attempt to clarify the
facts or suggest other employees who may
have knowledge of them...."
Thus, viewing the decision as a whole, the Admin-
istrative Law Judge rejected the Respondent's con-
tention that an employer could demand the silence
of the statutory representative throughout a Wein-
garten interview.
In agreeing with the Administrative Law Judge's
findings and conclusions on this issue, it is our
view that the Supreme Court, in the course of its
Weingarten decision, intended to strike a careful
balance between the right of an employer to inves-
tigate the conduct of its employees at a personal in-
terview, and the role to be played by a statutory
representative who is present at such an interview.
It is clear from the Supreme Court's decision that
the role of the statutory representative at an inves-
tigatory interview is to provide "assistance" and
"counsel" to the employee being interrogated.
However, the Supreme Court made it equally clear
that the presence of the statutory representative
"need not transform the interview into an adver-
sary contest,"6 or indeed, any type of collective-
bargaining confrontation. Clearly, then, an employ-
er's right to regulate the role of the statutory repre-
sentative at an investigatory interview is limited to
a reasonable prevention of such a collective-bar-
gaining or adversary confrontation with the statu-
tory representative.
In the instant case, the Respondent, by demand-
ing the silence of Gottschalk's union steward until
after Gottschalk had confessed to the charges, did
not engage in a reasonable prevention of a collec-
tive-bargaining or adversary confrontation with the
statutory representative. Rather, the Respondent at-
tempted from the very outset of the interview to
stifle any participation by the union steward during
4 Id at 262-263. 265
Id. at 260
Id. at 263
the interview. At the time that Hubbard demanded
McQuiller's silence, there was no indication that
McQuiller had sought or would seek to turn the in-
terview into a collective-bargaining or adversary
confrontation.
We note, further, that the interview itself, as
well as its outcome, demonstrates the critical need
for the rights granted to employees under Weingar-
ten. For as the Supreme Court stated in Weingar-
ten, often "an investigative interview is conducted
by security specialists; the employee does not con-
front a supervisor who is known or familiar to him,
but a stranger trained in interrogation techniques." 7
Similarly, Gottschalk was confronted at the inter-
view by Hubbard, a security supervisor and former
FBI agent who was trained in interrogation tech-
niques and who used those techniques to procure a
total written confession from Gottschalk. Obvious-
ly, the mere silent presence of Gottschalk's union
steward at the interview was insufficient to alter
the imbalance which the Supreme Court sought to
alleviate in its Weingarten opinion.
Accordingly, we agree with the Administrative
Law Judge that the Respondent, by requiring
Gottschalk's union representative to remain silent,
denied Gottschalk union representation at an inves-
tigatory interview which Gottschalk reasonably
feared might result in his discipline, in violation of
Section 8(a)(1) of the Act.
With regard to Brooks, the facts reveal that on
the morning of March 9 the Respondent's manager
of operator services, Ruth Reese, was instructed to
discharge Brooks because of excessive absences.
When Brooks reported to Reese's office that morn-
ing in order to present Reese with a doctor's
excuse for her latest absence, Reese told her that
she (Reese) wanted to meet with her. Brooks re-
quested that they wait for the arrival of her union
steward, Brown. Upon Brown's arrival, Reese in-
formed Brooks that the decision had been made to
discharge her, and provided Brooks with precise
reasons for the discharge. When Brown sought to
intervene in the discussion, Reese told Brown that
she could say nothing until after Brooks left the
meeting. At that point, Brooks accepted the dis-
charge and left the meeting.
The Administrative Law Judge, relying on
Amoco Oil Company,8 Texaco, Inc.,9 and K-Mart
Corporation,'o found no unlawful denial of union
representation because the Respondent merely in-
formed Brooks of the discipline "that had been de-
cided upon prior to the session, and thus did not
7 Id. at 265, fn. 10.
a 238 NLRB 551 (1978).
242 NLRB 291 (1979).
to 242 NLRB 855 (1979)
614 I)FCISIONS OF NATIONA I LAB()R RELATIONS BOARDI
engage in any other type of interchange which
could be characterized as an interview." Howev-
er, subsequent to the Administrative Law Judge's
Decision, the Board issued its Decision in Baton
Rouge Water Works Company. 2 A majority of the
Board there held that, under the Supreme Court's
decision in Weingarten, an employee has no Section
7 right to union representation at a meeting with
his employer held solely for the purpose of inform-
ing the employee of, and acting upon, a previously
made disciplinary decision. 1 3
In the instant case, the record is clear that the
Respondent had reached a final decision to dis-
charge Brooks prior to the March 9 meeting at
which she was informed of her discharge. The
record is also clear that the Respondent had
reached that decision based upon facts and evi-
dence which it had obtained prior to the March 9
meeting, and it is undisputed that the sole purpose
of the meeting was to inform Brooks of her dis-
charge. Accordingly, we find that the Respondent
did not violate Section 8(a)(1) of the Act as a result
of the March 9 discharge meeting. 4
With regard to the information requested by the
Union from employee Martin's personnel file, the
facts reveal that on March 22 Staff Supervisor Pat
Burke informed Martin, a mail driver, in the pres-
ence of Martin's union steward, LaBorde, that
Martin was suspended for lying on his employment
application. Apparently, Martin had indicated on
his employment application that he had three or
four moving traffic violations, whereas his driving
" Amoco Oil Company, supra.
'Z 246 NLRB No. 161 (1979), Chairman Fanning and Member Plencli
dissenting separately.
'' The Board majority reasoned that:
[Als long as the employer has reached a final, binding decision to
impose certain discipline on the employee prior to the interview,
based on facts and evidence obtained prior to the interview, no Sec-
tion 7 right to union representation exists under Weingarten when the
employer meets with the employee simply to inform him of. or
impose. that previously determined discipline. [246 NLRB No. 161]
The Board majority also emphasized that "the fact that the employer and
employee thereafter engage in a conversation at the employee's behest or
instigation concerning the reasons for the previously determinled disci-
pline will not, alone, convert the meeting to an interview at which the
Weingarten protections apply." (Id.)
14 Chairman Fanning and Member Penello, each of whlom dissented in
Baton Rouge Water Works, would find that the Respondent violated Sec
8(a}(1) by requiring Brooks' union steward to remain silent at Brook's dis-
charge interview. Thus, they disagree with the Administrative Law
Judge's application of Amoco Oil. Texaco, and K-Mart. The facts, as
Found by the Administrative Law Judge, reveal that during the meeting,
Reese discussed with Brooks the doctor's excuse, previous absences and
disciplinary action, the reasons Brooks had given for those absences, and
Brooks' attendance record as compared to those of other employees.
Reese herself testified that there was "some interchange" between her
and Brooks about the latter's record. Since the discharge meeting rose to
that level of an interview requiring the Weingarren protections, Chairman
Fanning and Member Penello would find that the Respondent, by requir-
ing Union Steward Brown to remain silent until after the interview with
Brooks was over, unlawfully denied Brooks union representation at the
interview.
record received from the State indicated eight
speeding convictions and two negligent collisions.
Martin was told that he would be discharged at
noon the next day unless he resigned before that
time. LaBorde then requested copies of Martin's
employment application and driving record, and
Burke indicated that he saw "no problem" with
that request, but he would have to check with his
supervisor first. Martin turned in his key and ID
card, and left the premises. At 7:30 the next morn-
ing, Burke informed LaBorde that he could not
provide LaBorde with copies of the documents
without written authorization from Martin. La-
Borde was unable to contact Martin, and Martin
resigned later that morning.
The Administrative Law Judge, inadvertently
finding that the events above occurred on May 22
rather than on March 22, concluded that pursuant
to a settlement agreement between the Respondent,
the Union, and the Board, which was enforced by
the United States Court of Appeals on May 16, the
Respondent was under no obligation to supply the
Union with copies of the requested documents
without Martin's written authorization. Since the
Administrative Law Judge erroneously relied upon
the settlement agreement to resolve this allegation,
we must determine whether the Respondent violat-
ed the Act based upon our own review of the
facts.
It is undisputed that the Respondent refused to
provide copies of the documents as requested by
the Union, and that the information contained in
the documents was relevant and necessary for the
performance of the Union's statutory function in
representing Martin. For example, had the Union
been able to review the documents, it might have
been able to advise Martin as to whether he should
resign from the Respondent, or allow himself to be
discharged and pursue his remedy through the
grievance arbitration system.
In addition, the sole reason relied upon by the
Administrative Law Judge for finding no violation
was the Respondent's defense that Martin had not
authorized in writing the release of the information
from his personnel file. We note, however, that this
defense has been repeatedly rejected by the
Board.' 5 Accordingly, we find that the Respond-
ent, by refusing to furnish the Union with copies of
designated documents from Martin's personnel file,
violated Section 8(a)(5) and (1) of the Act.' 6
l' Cf. The Electric .4uto-rit Comnpany, 89 NLRB 1192. 1198 99 (1950)
N, L R.B. v. Acme Indurrial Co. 385 U S. 432. 435 (1967).
S()O'rHWFSTFRN HEI.I. TII.FI'H()NE C()MPANY hl5
THE REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, we shall recom-
mend that it cease and desist therefrom and take
certain affirmative action set forth below designed
to effectuate the policies of the Act.
We have found, in agreement with the Adminis-
trative Law Judge, that the Respondent violated
Section 8(a)(l) of the Act by depriving Charles
Gottschalk of union representation at an investiga-
tory interview which Gottschalk reasonably be-
lieved might result in his discipline. Since the Re-
spondent's unlawful interview with Gottschalk re-
sulted in a confession and Gottschalk's immediate
suspension and termination, we deem it appropri-
ate, in order to rectify the harm caused by the un-
lawful interview, to grant the remedy of reinstate-
ment and backpay.' 7 We shall order the Respond-
ent to offer Gottschalk immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, with-
out prejudice to his seniority or any other rights or
privileges previously enjoyed. We shall also order
the Respondent to make Gottschalk whole for any
loss of earnings he may have suffered by reason of
the Respondent's discrimination against him, by
paying to him a sum of money equal to the amount
he normally would have earned as wages from De-
cember 13, 1977, to the date of the Respondent's
valid offer of reinstatement, less net earnings
during said period. The amount of backpay due
17 Illinois Bell Telephone Co.. 251 NLRB No. 128 (1980) We note that
in the instant case, as in Illinois Bell, the General Counsel has shown that
an unlawful investigatory interview occurred and that the employee was
discharged for conduct which was the subject of the interview Howe,-
er, unlike Illinois Bell. the Respondent did not come forward with evi-
dence as to the basis for its decision to discharge Gottschalk. NIeverthe-
less, we deem it unnecessary to reopen and remand this case to the Ad-
ministrative Law Judge for a hearing that would provide the Respondent
with an opportunity to show that its decision to discharge Gottschalk
was not based on information which it obtained at the interview In this
regard, we note Security Supervisor Hubbard's testimony that "the pur-
pose of obtaining the written statement from Mr. Gottschalk was so that
there wouldn't be any question as to what was true and what was not
true." and that his "intent and purpose . prior to going into the meet-
ing wasl to obtain a written confession from Mr. Gottschalk " Hubbard
further testified that the only evidence the Respondent had prior to the
interview implicating Gottschalk in the theft of company property was
the name, address, and physical description of the man who pawned the
company property, which information was obtained b the pawn shop
operator directly from the driser's license presented by the man pawning
the property Hubbard admitted that "anybody could have gone up there
with Mr Gottschalk's driver's license and pawned the equipment .
Finally, we note that Gottschalk was suspended immediately after he
signed the written confession and prior to the end of the interview
Under these circumstances, we deem it highly improbable that the Re-
spondent did not rely on Gottschalk's written confession in its decision to
suspend and terminate him.
Member Jenkins joins in this result, for the reasons expressed in his
concurrence in llinois Bell: that the reason for Gottschalk's discharge
was related to the subject matter of the interview.
Member Penello, who did not participate in Illinois Bell. relies on that
decision only insofar as it discusses the issue of the appropriate remedy
for a Weingarten violation
shall be computed in the manner prescribed in F.
W. Woolworth Company, 90 NLRB 289 (1950), with
interest as prescribed in Florida Steel Corporation,
231 NLRB 651 (19 7 7 ).
18 Furthermore, as part of
the make-whole remedy, we shall order that Gotts-
chalk's written confession obtained at the inter-
view, as well as any references to any disciplinary
action arising out of the interview, be expunged
from the Respondent's files and records. ' 9
We have also found, contrary to the Administra-
tive Law Judge, that the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by refusing to fur-
nish the Union with copies of certain documents
from Mickey Martin's personnel file. Therefore, we
shall order the Respondent to furnish the requested
copies of Martin's employment application and
driving record from the Texas Department of
Public Safety. In addition, in order to restore
Martin and the Union to the status quo ante, we
shall order the Respondent to waive any grievance
procedure time limitations so that the Union may
have the opportunity to file a grievance over Mar-
tin's termination.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Southwestern Bell Telephone Company, Houston,
Texas, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Depriving any employee of his right to union
representation at an investigatory interview which
the employee reasonably believes might result in
disciplinary action, by requiring the union repre-
sentative to remain silent throughout the interview.
(b) Refusing to furnish Communications Workers
of America, Local 12222, AFL-CIO, upon request,
all information which is relevant and necessary to
the proper performance of the Union's statutory
duties of collective bargaining and grievance proc-
essing.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
]a See, generally. is Plumbing d Heating Co.. 138 NLRB 716 (1962)
Member Jenkins would compute the interest due n backpay in accord-
ance with iMedical Corporation, 250 NLRB No 11 1980)
19 Nesvertheless, if Gottschalk does accept reinstatement, the Respond-
ent is not foreclosed from disciplining him fr theft of company properti
so long as such action is not taken on the basis of an5 information oh-
tained at the December 13 interview As noted in Illinois Bell lelephone
Co., "this procedure remedies the unfair labor practice. while preserving
Respondent's right to discipline and discharge its employ)ees. so long as
its actions do noI contralvene the Act "
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action:
(a) Offer Charles Gottschalk immediate and full
reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(b) Make whole Charles Gottschalk for any loss
of earnings he may have suffered by reason of the
Respondent's discrimination against him, as set
forth in the section of this Decision entitled "The
Remedy."
(c) Expunge from its records and files Gotts-
chalk's written confession obtained at the unlawful
investigatory interview of December 13, 1977, as
well as any references to any disciplinary action
taken against Gottschalk as a result of the Decem-
ber 13 interview.
(d) Furnish the Union, upon request, with copies
of Mickey Martin's employment application and his
driving record from the Texas Department of
Public Safety, and waive any grievance procedure
time limitation so that the Union may have the op-
portunity to file a grievance over Martin's termina-
tion.
(e) Furnish the Union, upon request, with the
1977 daily time reports of special services crew
7299, and the 1977 "Daily Serial List" reports,
monthly "Load Forecast" reports, and monthly
summaries for all teletype crews (Form S-902).
(f) Post at its facilities in Houston, Texas, copies
of the attached notice marked "Appendix." 2 0
Copies of said notice, on forms provided by the
Regional Director for Region 23, after being duly
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous
places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(g) Notify the Regional Director for Region 23,
in writing, within 20 days from the date of this
Order, what steps the Respondent has taken to
comply herewith.
20 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Psoted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAIl LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT deprive any employee of his
right to union representation at an investiga-
tory interview which the employee reasonably
believes may result in disciplinary action, by
requiring the union representative to remain
silent throughout the interview.
WE WILL NOT refuse to furnish Communica-
tions Workers of America, Local 12222, AFL-
CIO, upon request, all information which is
relevant and necessary to the proper perform-
ance of the Union's statutory duties of collec-
tive bargaining and grievance processing.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL offer Charles Gottschalk immedi-
ate and full reinstatement to his former job or,
if that job no longer exists, to a substantially
equivalent position, without prejudice to his
seniority or any other rights or privileges pre-
viously enjoyed; and we will make him whole
for any loss of earnings he may have suffered
by reason of our discrimination against him,
plus interest.
WE WILL expunge from our records and
files Charles Gottschalk's written confession
obtained at the unlawful investigatory inter-
view of December 13, 1977, as well as any ref-
erences to any disciplinary action taken against
Charles Gottschalk as a result of the Decem-
ber 13 interview.
WE WILL furnish the Union, upon request,
with copies of Mickey Martin's employment
application and driving record from the Texas
Department of Public Safety, and WE WILL
waive any grievance procedure time limita-
tions so that the Union may have the opportu-
nity to file a grievance over Mickey Martin's
termination.
WE WILL furnish the Union, upon request,
the 1977 daily time reports of Special Services
Crew 7299 and the 1977 "Daily Serial List"
reports, monthly "Load Forecast" reports, and
monthly summaries for all teletype crews
(Form S-902).
SOUTHWESTERN BELL TELEPHONE
COMPANY
SOUTHWESTERN BELL TELEPHONE COMPANY 617
DECISION
STArFt NIl N O Till. CASEI
MARION C. LADWIG, Administrative Law Judge:
These consolidated cases were heard at Houston, Texas,
on December 7-8, 1978.1 The charges were filed on
April 17, May 17, and July 17, and the complaints and
consolidation orders were issued on July 13 and Septem-
ber 1.
Following earlier proceedings involving the Compa-
ny's interference with employees' right under L.R.B.
v. J. Weingarten Inc., 420 U.S. 251 (1975), to have union
representation at investigatory interviews, and involving
the Company's failure to furnish certain documents to
the Union, the Company began placing restrictions on
the participation of the union steward in disciplinary
meetings with employees, and refused to furnish other
company records requested by the Union. The primary
issues are whether the Company unlawfully (a) denied
employees union representation, counseling, and assist-
ance by requiring the union steward to remain silent
during the course of disciplinary interviews in violation
of Section 8(a)(1) of the National Labor Relations Act,
and (b) refused to furnish the Union with certain request-
ed information in violation of Section 8(a)(5) and (1) of
the Act.
Upon the entire record, 2 including my observation of
the demeanor of the witnesses, and after due considera-
tion of the briefs filed by the General Counsel, the Com-
pany, and the Union, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Company, a Missouri corporation, is a communi-
cations common carrier providing telephone and other
communications services in Texas, Arkansas, Oklahoma,
Kansas, and Missouri, where it annually receives rev-
enues in excess of $100,000. The Company admits, and I
find, that it is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II1. THE ALL.EGED UNFAIR LABOR PRACTICES
A. Alleged Denials of "Weingarten" Right
I. Prior interference
In Southwestern Bell Telephone Company, 227 NLRB
1223 (1977), the Board held that the Company interfered
with employees' Weingarten right to have union repre-
sentation during interviews with potential disciplinary
consequences in violation of Section 8(a)(1) of the Act
by telling "employees, on three different occasions, in re-
sponse to their inquiries regarding the propriety of ob-
taining union representation and an outright request for
l All dates are in 1978 unles, otherv, re indicated
I grant the Company, unopposed January 2. 1979. motion and suhti-
tule (as Resp Exhh A and B) the Board order and conenr judgmentl
in Cases 23-CA-6314 and 23 CA- 475 for the order and consent Ildg-
mern (Resp Exhs I and 2) in Case 23-CA-476
representation, that the result of granting those requests
would be that higher management would have to be
called in on the investigation and that the probable con-
sequences would be worse for the employees." The
Board ruled that the "threat that the exercise of the right
to representation would lead to more severe discipline or
that the employee's fate would be in more capricious and
hostile hands is no less interference and restraint than an
outright denial of his right."
2. Instructions for union steward to remain silent
a. Charles Gottschalk. Case 23-CA- 7024
On December 13, 1977 (following the Board's finding
of interference in the above-cited case), the Company
granted employee Charles Gottschalk's request for union
representation during an investigatory interview, but in-
structed the union steward not to say anything during
the interview.
District Staff Supervisor-Security Billy Hubbard and a
city detective, Fincher, had recovered a pair of the
Company's climbing hooks and a safety belt from a
pawnshop whose owner stated that employee Gottschalk
was the person who pawned the company property.
Before learning that District Manager-I/R-Special Serv-
ices Robert Garner had made the decision not to file
criminal charges against Gottschalk, Hubbard arranged
for Detective Fincher to attend a meeting in which Hub-
bard would question Gottschalk about the stolen proper-
t y.
PBX Repair Foreman Tom Hataway called Gotts-
chalk to the meeting, which was attended by District
Manager Garner (Gottschalk's third line supervisor),
Hataway (his first line supervisor), and Hubbard (former-
ly employed by the F.B.I.). Hubbard displayed the stolen
property and began asking Gottschalk about his involve-
ment. Gottschalk then requested union representation,
and Hataway called in Union Steward Mark McQuiller,
whom Hubbard informed of the allegations against
Gottschalk. At that point, as Hataway credibly testified,
Hubbard looked directly at Mark and said, "I'm going to
ask Charles some questions. I don't want you to say any-
thing. I want him to answer in his own words." [Empha-
sis supplied.] As recalled by McQuiller, "At that time, he
told me not to say anything or answer any questions that
he would pose direct." (Hubbard, who impressed me as
being less candid about the matter, did not admit telling
McQuiller to remain silent.)
After instructing Union Steward McQuiller not to say
anything, Security Supervisor Hubbard (as McQuiller,
now a supervisor, credibly testified) proceeded to ques-
tion Gottschalk about the theft and "informed Gotts-
chalk that a police officer was on his way to the meeting
and that if he didn't confess to these charges, that he
would be taken downtown." (Hubbard did not reveal the
decision-which he admitted that District Manager
Garner had made before the meeting-not to file crimi-
nal charges.) Gottschalk became quite upset and began
to cry. He had discussed the matter with McQuiller
before the meeting and McQuiller had suggested that he
not say anything at all. However, that was before Hub-
618 I)I:.CISIONS OF NATIONAL LABOR RELATIONS BOARD
bard's threat that he would be taken downtown to the
police station if he did not confess. Being forced to make
a decision on his own, without further advice from the
union steward, whom Hubbard had instructed to remain
silent, Gottschalk finally stated, "I may be going against
my union representative's advice; but, yes, I did do those
things," saying that he needed the money for medicine
for his kids. Gottschalk then admitted also taking another
set of climbing hooks and safety belt and a third safety
belt. Hubbard had begun preparing a written confession
for Gottschalk to sign by the time the detective arrived.
Hubbard then advised the detective that no criminal
charges would be filed. It was not until after the confes-
sion was signed and witnessed that Hubbard asked if
Union Steward McQuiller had anything to say.
McQuiller did not at that time and Hubbard and the de-
tective left the meeting. District Manager Garner there-
upon suspended Gottschalk pending termination.
b. Andrea Brook.s; Case 23-CA-7072
On March 9, the Company again required a union ste-
ward to remain silent during a disciplinary meeting.
However, this meeting, in which the Company an-
nounced its earlier decision to discharge the employee
for poor attendance, was initiated by the employee her-
self in an effort to explain the latest absence and to avoid
being discharged. After the Company announced its final
decision to discharge the employee and refused to con-
sider her explanation she was permitted to leave the
meeting.
Manager of Operator Services Ruth Reese was in-
structed by her superior that morning to discharge oper-
ator Andrea Brooks who had been absent again the day
before. Before reporting to work that afternoon Brooks
asked to see Reese. When Reese called her to the office
a few minutes later, Reese told her that Reese also
wanted to see her and that Union Steward Johnnie
Brown had been asked to stay over and meet with them.
Brooks then gave Reese a note from her doctor and said
that she would like to wait until the steward arrived.
Upon the steward's arrival, Reese pointed out that the
doctor's note gave no prognosis, and then proceeded to
tell Brooks that the decision had already been made to
discharge her. Reese explained that Brooks had the
worst attendance record within the unit, read from her
personnel record the times she had been absent or tardy,
and reviewed her prior warning, suspension, and final
warning. Reese did not ask her any questions and told
her, "Andrea, regardless [ofl your doctor's excuse, we
have made [the decision] to terminate you." Reese re-
fused to discuss any explanation for the poor attendance,
and when Steward Brown repeatedly attempted to inter-
vene, Reese told her that she could not until after
Brooks left. Finally Brooks told Reese, "If you don't
allow her to represent me and you won't consider my
doctor's paper, then I guess I will just leave. You have
already made your decision." Brooks then left the meet-
ing.
3. Contentions of the parties
Concerning the Gottschalk case, the General Counsel
contends that by insisting that the union steward remain
silent during the course of the interview, in which Secu-
rity Supervisor Hubbard warned Gottschalk that a police
detective was on his way to pick him up if he did not
confess, the Company denied Gottschalk "union repre-
sentation, counseling and assistance" in violation of Sec-
tion 8(a)(1) of the Act. The Union contends, "It is clear
that Hubbard (a former FBI agent) was conducting an
investigatory interview" in a "highly coercive atmos-
phere" and "of the type that mandates union participa-
tion." The Company contends, on the other hand, that
Gottschalk had the right to have only the union stew-
ard's presence, and not his participation, during the in-
vestigatory interview, and that by requiring the steward
to wait until after Gottschalk confessed "to ask questions
and seek clarification and gather whatever information"
the steward wanted, the Company was "simply asking
that the interview be conducted in an orderly fashion."
Concerning the Brooks' case, the General Counsel
contends that the Company proceeded to "interview"
Brooks after notifying her of her discharge, and that by
insisting on the union steward remaining silent until the
conclusion of the "interview," the Company "violated
those Section 7 rights that Weingarten seeks to protect,"
and further denied Brooks the choice of an interview
without her union representative, or no interview at all.
The Union contends that by prohibiting the union ste-
ward to participate in the discussion of Brooks' attend-
ance record as contained in her personnel history file,
the Company improperly and unlawfully refused to
allow the union representative to participate in the :'in-
terview." The Company, to the contrary, contends that
it was not seeking any information or explanation from
Brooks about her attendance record; that there was no
"interview"; that the Company "simply wanted to tell
her that she was fired and tell her why": and that the
dispute over the steward's participation occurred when
Brooks and the steward "attempted to turn the meeting
into an interview" and the Company "refused to let it
follow that course," whereupon Brooks left and the
meeting ended.
4. Statutory right of "assistance"
In its opinion in NL.R.B v. J. Weingarten, In., 420
U.S. 251 (1975), the Supreme Court repeatedly referred
to the statutory right of an employee to have the ass-isl-
ance, and not merely the presence, of a union representa-
tive in a compulsory, investigatory interview which the
employee reasonably fears may result in his discharge.
After pointing out that the Board "shaped the con-
tours and limits of the statutory right" in its decisions in
Quality Manufacturing Company, 195 NLRB 197 (1972),
and Mobil Oil Corporation, 196 NLRB 1052 (1972), the
Supreme Court approvingly quoted (420 U.S. at 256-
257) the Board's language in the Mobil Oil decision that:
it is a serious violation of the employee's individual
right to engage in concerted activity by seeking the
assistance of his statutory representative if the em-
SO()THWESTERN BELLI TEL.EPHONE COMPANY 610
ployer denies the employee's request and compels
the employee to appear unassisted at an interview
which may put his job security in jeopardy. Such a
dilution of the employee's right to act collectively
to protect his job interests is. in our view, unwar-
ranted interference with his right to insist on con-
certed protection, rather than individual self-protec-
tion, against possible adverse employer action. [Em-
phasis supplied.]
Then, after reviewing the Board's other "contours and
limits of the statutory right" and ruling that "The
Board's holding is a permissible construction of 'concert-
ed activities for . . . mutual aid or protection' and
should have been sustained" by the lower court, the Su-
preme Court specifically held (420 U.S. at 260):
The action of an employee in seeking to have the
assistance of his union representative at a confronta-
tion with his employer clearly falls within the literal
wording of s 7 that "[e]mployees shall have the
right . . to engage in . . concerted activities for
the purpose of. .. mutual aid or protection;" [Em-
phasis supplied.]
Elsewhere in the opinion, the Court further referred to
union assistance, and to what this assistance may entail.
It quoted (Id. at 262, fn. 7) from the arbitrator's opinion
in Independent Lock Co., 30 LA 744, 746:
Participation by the union representative might
reasonably be designed to clarify the issues at this
first stage of the existence of a question, to bring
out the facts and the policies concerned at this
stage, to give assistance to employees who may lack
the ability to express themselves in their cases, and
who, when their livelihood is at stake, might in fact
need the more experienced kind of counsel which
their union steward might represent. [Emphasis sup-
plied.]
The Court then added that "A single employee con-
fronted by an employer investigating whether certain
conduct deserves discipline may be too fearful or inar-
ticulate to relate accurately the incident being investigat-
ed, or too ignorant to raise extenuating factors" (emphasis
supplied), and pointed out that "A knowledgeable union
representative could assist the employer by eliciting fa-
vorable facts, and save the employer production time by
getting to the bottom of the incident occasioning the in-
terview. Certainly his presence need not transform the
interview into an adversary contest." Thereafter the
Court again referred (420 U.S. at 266) to union assistance
when holding that the Court of Appeals "impermissibly
encroached upon the Board's function in determining for
itself that an employee has no 'need' for union assistance
at an investigatory interview." (Emphasis supplied.) This
holding followed the discussion (Id. at 265, fn. 10) in
which the Court cited sophisticated investigative tech-
niques, including interviews conducted by security spe-
cialists, and pointed out that "These techniques increase
not only the employees' feeling of apprehension, but also
their need for experienced assistance" (emphasis sup-
plied), as when "the employee does not confront a super-
visor wuho is known or familiar to him, but a stranger
trained in interrogation techniques."
In its brief, the Company ignores all of these refer-
ences in the Supreme Court's Weingarten opinion to the
necessity of union assistance and participation at the in-
vestigatory interview, and contends that the employer
"can lawfully insist that he does not ant to hear from
the union representative during an investigatory inter-
view." The Company relies primarily upon one sentence
in the Court's opinion (420 U.S. at 260), where the
Court-after holding that "The employer has no duty to
bargain with the union representative at an investigator,
interview"--cited language in the Board's brief that
"The employer, however, is free to insist that he is only
interested, at that time, in hearing the employee's own
account of the matter under investigation." Fhe context
of the sentence. though. reveals that hereas the em-
ployer may insist on being only interested in hearing tile
employee's on account of the matter. the employer
may not deprive the employee of the right of union as-
sistance during the interview. In fact, the preceding sen-
tence in the Board's brief, as quoted by the Court, spe-
cifically stated that "The representative is present to
assist the employee. and may attempt to clarify the facts
or suggest other employees who may have knowledge of
them." (Emphasis supplied.) The Company also relies on
certain language in footnote 5 of Justice Powell's dissent-
ing opinion.( Id. at 273-274.) The footnote states that
the employee's [Section] 7 right announced today
may prove to be of limited value to the employee
or to the stabilization of labor relations generally
The Court appears to adopt the Board's view that
investigatory interviews are not bargaining sessions
and that the employer legitimately can insist on
hearing only the employee's version of the facts.
Absent employer invitation, it would appear that
the employee's [Section] 7 right does not encompass
the right to insist on the participation of the person
he brings with him to the investigatory meeting.
The new right thus appears restricted to the privi-
lege to insist on the mute and inactive presence of a
fellow employee or a union representative; a wit-
ness to the interview, perhaps.
(Neither the Court nor the Board has adopted this
restricted interpretation of the statutory right.)
Relying on the majority opinion of the Supreme Court
in Weingarten, I find that when an employer grants an
employee's request for union representation at a compul-
sory, investigatory interview which the employee reason-
ably believes might result in disciplinary action, it is a se-
rious violation of the employee's statutory right to
engage in concerted activity if the employer deprives
him of the assistance and counsel of the union repre-
sentative by requiring the representative to remain silent
during the interview. Although the employer has no
duty to bargain with the union representative at the in-
terview and may insist upon being only interested at that
time in hearing the employee's own account of the
matter under investigation, the employer may not de-
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prive the employee of his statutory right to have the
union representative give him advice and counsel during
the interview, and to otherwise assist him by clarifying
the facts, raising extenuating factors, etc. Of course, on
the other hand, the employer may decide to refuse to
allow such union representation and to carry on the in-
quiry without interviewing the employee. As the Su-
preme Court held in its Weingarten opinion (420 U.S. at
258), the "exercise of the [employee's] right may not in-
terfere with legitimate employer prerogatives. The em-
ployer has no obligation to justify his refusal to allow
union representation, and despite refusal, the employer is
free to carry on his inquiry without interviewing the em-
ployee, and thus leave to the employee the choice be-
tween having an interview unaccompanied by his repre-
sentative, or having no interview and forgoing any bene-
fit that might be derived from one."
5. Concluding findings
It is clear that in the Gottschalk case, the Company
denied the employee his statutory right to have the as-
sistance and counsel of the union representative during
the investigatory interview. The Company required em-
ployee Gottschalk to attend the interview which he rea-
sonably believed might result in disciplinary action.
Before beginning the interview in the presence of Gotts-
chalk's first line and second line supervisors, Supervisor-
Security Hubbard instructed Gottschalk's union repre-
sentative to be silent during the interview. Hubbard then
proceeded to question Gottschalk about the stolen climb-
ing hooks and safety belt on display. Without revealing
the Company's earlier decision not to file criminal
charges, Hubbard informed Gottschalk that a police offi-
cer was on his way to the meeting and that unless Gotts-
chalk confessed stealing the property, he would be taken
to the police station. He could not seek the union stew-
ard's counsel because of Hubbard's instructions that the
steward remain silent. (The steward had previously ad-
vised Gottschalk not to say anything, but this advice was
given before the threat of arrest.) In this "highly coer-
cive atmosphere," Gottschalk became quite upset, began
to cry, and finally confessed, "I may be going against my
union representative's advice; but, yes, I did do those
things." He then confessed to stealing other property as
well, and signed a written confession, before the steward
was given the opportunity to say anything. Gottschalk
was then suspended pending discharge. Under these cir-
cumstances, the Company was utilizing the interview as
a means of coercing a confession from Gottschalk, while
requiring the union representative to remain silent.
Gottschalk was forced to make the decision on his own,
without any assistance or counsel of the steward during
the interview. I therefore find that the Company, by re-
quiring the union steward to remain silent, unlawfully
deprived Gottschalk of the union representative's counsel
and assistance during the investigatory interview, there-
by interfering with the Section 7 right of employees to
act in concert for mutual aid and protection, in violation
of Section 8(a)(1) of the Act.
In the Brooks case, however, I agree with the Compa-
ny that the employee was not entitled to union represen-
tation. Employee Brooks requested the meeting after the
Company had already decided to discharge her for poor
attendance. At the meeting, Manager of Operator Serv-
ices Reese refused to discuss any explanation for Brooks'
poor attendance; informed Brooks that the discharge de-
cision had already been made; explained that Brooks had
the worst attendance record; and reviewed her record
and the prior disciplinary actions taken against her.
Reese did not ask Brooks any questions and refused to
discuss the matter with the union steward who was pres-
ent. Brooks was then permitted to leave the meeting
when she told Reese, "If you don't allow [the steward]
to represent me and you won't consider my doctor's
paper, then I guess I will just leave. You have already
made your decision." Under these circumstances, Brooks
was not required to submit to an "interview," and she
was permitted to leave the meeting upon being denied
union representation. Before she left the meeting as in
Texaco, Inc., 242 NLRB 291 (1979), the employer merely
informed her "of the action taken and of the reason
therefore." Also, as in the disciplinary sessions involved
in K-Mart Corporation, 242 NLRB 855, fn. 5 (1979), the
employer did not go beyond informing the employee of
the discipline "that had been decided upon prior to the
session, and thus did not engage in any other type of in-
terchange which could be characterized as an inter-
view." Amoco Oil Company, 238 NLRB 551 (1978). Ac-
cordingly I find that the Company did not violate the
Act by denying Brooks union representation.
B. Alleged Refuisals To Furnish Relevant Information
1. Prior proceeding
On November 9, 1977, the Company and the Union
joined in executing a formal settlement agreement in
Southwestern Bell Telephone Company, Cases 23-CA-6314
and 23-CA-6475 (Resp. Exh. 3), in which they (as Re-
spondent and Charging Party) agreed to the Board enter-
ing an Order (Resp. Exh. 8A), requiring the Respondent
to:
(a) Make available to the Charging Party to read
and inspect during normal business hours on company
premises the following items relating to the testing
of bargaining unit personnel: All test, tapes of test-
ing assessments or evaluations, answer sheets and
scores. Further make available, as indicated above,
any material contained in the personnel history files of
bargaining unit personnel. It is understood that the
Charging Party may not remove said items from
company premises or make copies thereof but that
all such items shall be made available to the Charging
Party for use at any step of the grievance proceedings
including a hearing before an arbitrator. Any such
items introduced in a hearing before an arbitrator
shall be made available only subject to an appropri-
ate protective order guaranteeing its confidential
nature.
Make available a duplicate copy of the contents of a
personnel history file of bargaining unit personnel to
the employee-grievant in question upon presentation of
a written request by said employee-grievant. [Emphasis
supplied.]
SOUTHWESTERN ELL TEILEPHONE COMPANY 2 1
The Order, dated February 1. was enforced by the Court
of Appeals for the Fifth Circuit on May 16 (Resp. Exh.
8B).
Thus, in settlement of the earlier cases, the Company
and Union agreed that the Company would be required
to furnish to the Union, to read and inspect on the prem-
ises, "any material contained in the personnel history
files of bargaining unit personnel," upon the understand-
ing that the Union would not make copies; and, further,
that the Company would be required to furnish a em-
ployee-grievant a duplicate copy of the contents of the
file upon his written request.
2. Mickey Martin, Case 23-CA-7157
On May 22, about 10:30 p.m., Staff Supervisor Patrick
Burke called mail serviceman Mickey Martin and his
union steward, Terry LaBorde, to a disciplinary, meeting.
In the meeting, Burke informed Martin, who had been
employed about 2 months, that he was suspended for
lying on his employment application, and that he would
be discharged at noon the next day if he did not resign in
the meantime. Reading from Martin's application and his
driving record received from the Department of Public
Safety, Burke pointed out that Martin had indicated
three or four moving violations on his employment appli-
cation, whereas the DPS form showed that he had eight
speeding convictions and two negligent collisions on his
record. Burke asked, "Mickey, can you explain this?"
Martin answered, "I thought I put them all down. I
guess I might have forgotten one or two." Burke had the
two one-page documents, the employment application
and the DPS report, on the desk in front of him and read
off the nature of the violations. From where he was sit-
ting, LaBorde could see the DPS report, which listed the
dates and the violations, but he did not examine the
report closely. LaBorde did not ask to "read and in-
spect" the two documents from Martin's personnel histo-
ry file-as he on behalf of the Union was entitled to do
upon request under the above-mentioned settlement
agreement-but instead asked for copies of the employ-
ment application and the DPS form. Although Burke's
response is in dispute, I find that he replied that he saw
"no problem" furnishing LaBorde with the copies, but
that he would have to call his supervisor in the morning
because he thought that under the settlement stipulation,
there was a union form which had to be completed. (I
discredit Burke's claim that he went further and told La-
Borde that the form had to be signed by the employee. I
also discredit LaBorde's claim that he told Burke he
"had a form which would compel him to give me copies
of the document," that he asked if Burke would give him
the copies without the form, and Burke answered, "Yes,
no problem.") Martin turned in his key and identification
card, and left the premises.
About 7:30 the next morning, as Union Steward La-
Borde was leaving the night shift, he asked Supervisor
Burke, "Where are my copies?" Burke answered that he
was waiting for a telephone call. LaBorde then wrote
out a form for requesting the production of documents
for use in the processing of a pending grievance. After
checking with his superior, Burke told LaBorde that he
could not give LaBorde copies of the documents without
written authorization from employee Martin. (As indicat-
ed above, the Company is required under the settlement
agreement to furnish the employee with a copy of the
contents of his personal history file upon "written re-
quest." LaBorde admittedly had not read the settlement
agreement.) LaBorde still did not ask specifically to
"read and inspect" the two documents. Martin resigned
later that morning.
At the hearing, Union Steward LaBorde testified that
he needed the information to determine if there was
"Anything that would lessen the severity of [employee]
Martin's punishment," and Supervisor Burke acknowl-
edged that "these documents would be pertinent to
whatever advice Mr. LaBorde might give as to whether
or not [Martin] should resign or be fired." However, al-
though finding the information to be relevant and neces-
sary for the performance of the Union's statutory func-
tion in representing the suspended employee, I find that
the General Counsel has failed to prove the necessity of
copies of the two documents. LaBorde could have ob-
tained the information he needed while Martin was pres-
ent in the disciplinary meeting merely by requesting to
"read and inspect" these documents from Martin's per-
sonnel history file, as provided in the earlier settlement
agreement. (Burke testified that "to the best of my
knowledge, I let [LaBorde] and Mr. Martin review" the
two documents, but admitted that he was "not 100 per-
cent sure.") The General Counsel has shown no need for
copies that night, nor the next morning-after Martin
had left the plant and at a time when LaBorde had no
way to contact Martin to give him advice before the
noon deadline for resigning. I therefore find that under
all of the circumstances, the Company did not unlawful-
ly refuse to bargain collectively with the Union in viola-
tion of Section 8(a)(5) and (1) of the Act, by refusing to
furnish it copies of documents from employee Martin's
personnel history file without his written request.
3. The Teletype, Case 23-CA-7157
Over the period of several months the Company, as-
serting shifting positions, adamantly refused to furnish
the Union with requested relevant documents which
were necessary for the Union to evaluate a grievance
concerning the Company's elimination of Monday as an
"SN" (nonscheduled) day for Teletype Crew 7299.
For about 8 years, employees on this crew were per-
mitted to take Monday off (as an SN day) when they
were scheduled to work the following Saturday. On
March 1, PBX Repair Foreman James Pousson an-
nounced to the crew members that they could no longer
take Mondays off because the work was heaviest on
Monday and Tuesday. Job Steward Douglas Walters
protested that this would mean that the senior crew-
members would no longer work on Saturdays, and "it
would be down to one person working every Saturday."
Pous.on responded that if he had his way, he would con-
tinue to give them Monday off, but that his superior had
decided to the contrary.
The Union filed a greivance, alleging that the Compa-
ny's action in changing the scheduling of SN days in
Special Services Crew 7299 was unfair, violated the col-
622 I)tICISI()NS OF NATIONAL LABOR RELATIONS BOARD
lective-bargaining agreement, and was arbitrary and done
in bad faith.
On March 16 (the day it filed the grievance), the
Union began making written requests for company re-
cords, on a form stating that "This information is abso-
lutely essential to an intelligent handling of the case." All
of the written requests, except the one dated May 16,
specifically asked for the 1977 "time reports" for Crew
7299 (referring to the daily reports for each of the five
crewmembers during 1977), and also the "dispatch trou-
ble logs" for all teletype crews in 1977. Although the
Company did not have documents specifically entitled
"dispatch trouble logs," it understood at the time that
the Union was referring to the "Daily Serial List" (C.P.
Exh. 1), a one-page list each day of all dispatches; and,
as discussed below, the Company used this terminology
in the Union's request to refer to the "Load Forecast"
(C.P. Exh. 2), a one-page monthly document showing
expected and actual trouble reports for each day of the
month, and also Form S-902 (C.P. Exh. 3), a one-page
untitled monthly summary for all teletype crews, show-
ing both trouble reports and other work performed on
each day of the month. The Union's May 16 request
asked for production of "All documents on decision to
SN employees on any day other than Mondays. For
TTY [teletype] crews in Spec. Serv. Dist.," and the
Company admittedly relied on the monthly load forecast
and the monthly summary (Form S-902) in justifying its
change of SN days.
In the grievance meetings, the Union contended that
there was no necessity for the unilateral change of SN
days; that the amount of the Monday work (which tradi-
tionally had been larger than on other days of the week)
was insignificantly greater when compared to the other
days; and that the Monday work included routine pre-
ventive maintenance which could have been deferred
until later in the week.
The requested documents were clearly relevant for de-
termining whether or not these union contentions were
correct. The information, for a period of a whole year,
would reveal not only the total amount and distribution
of the work each day but also whether there had been
any significant change in the flow of work during the
year for the respective days of the week. The time re-
ports for Crew 7299 would give detailed information for
the crewmembers directly involved in the grievance;
whereas the so-called "dispatch trouble logs" for all four
teletype crews would reveal similar information concern-
ing the amount of work which was assigned, as required,
to the available crews throughout the city. In addition,
the time reports and daily serial lists would reveal the
distribution of the routine maintenance work on the re-
spective days of the week throughout the year.
b. Shifting positions
The Company's first response to the Union's request
for company records was given over the signature of
Foreman Pousson on March 16, the date of the first re-
quest. The written note to the steward stated that Pous-
son was willing to schedule a grievance meeting if re-
quested, but added:
As of this time I have no information from the com-
pany stating that I should provide the union with
company records before or during such a meeting.
Therefore I will not provide the information in whole
or in part that you are requesting. [Emphasis sup-
plied.]
On March 31, again over Pousson's signature, the
Company gave a similar response to the Union's second
request. The note to the union steward, written after the
first grievance meeting, stated that the March 16
"answer" would remain in effect until the Union was no-
tified of a change.
At the second-level grievance meeting in April, the
Union orally renewed its request for information. The
Company refused to furnish any of the documents and
stated that the Union's request went beyond the National
Labor Relations Board settlement agreement, which con-
cerned the production of material in the personnel histo-
ry files.
At the third-level grievance meeting on May 16, Dis-
trict Manager Garner wrote on the Union's third written
request (G.C. Exh. 8) the notation:
Advised [District Steward] Flores do not have
any obligation to furnish company documents. Will
agree to furnish anything in personnel files of any
employee.
Thus, at this and the preceding grievance meeting, the
Company was taking the position that it was not obligat-
ed to furnish the Union any documents unless they were
contained in the personnel history files.
Before this May 16 meeting, the Company had com-
piled some of the information from three of the monthly
load forecasts to obtain a 3-month average of the number
of teletype "customer reports" (not the actual number of
dispatched assignments) for each day of the week. This
summary, which District Manager Garner orally report-
ed to the Union at the meeting, showed that there were
more trouble reports on Mondays and Tuesdays, which
was something the Union already knew.
Personnel Staff Manager Jack Chance produced none
of the requested documents at the June 13 fourth-level
grievance meeting. A month later, on July 13, he re-
sponded to the request for more information by making
an oral report to the Union over the telephone and deny-
ing the grievance. The report, confirmed in writing on
July 19, extended District Manager Garner's summary
from a 3-month to a 12-month daily average of "custom-
er reports," and added some separate averages of routine
maintenance (i.e., dispatches omitted from the daily aver-
age of "customer reports").
In the next grievance meeting, on August 8, the Union
again made a written request for the company records.
District Staff Manager Allen Short submitted a written
response on August 15 claiming, without explanation,
that "It is our belief that the Union's request is too
vague, overly broad and unduly burdensome." The
letter, written after the filing of the charge herein added,
"In denying this request, we do not intend to imply that
we will not furnish any documents to you. We will, of
S(O)U'I'IWES'l'ERN EL. 'TELEPHONE COMPANY t. 23
course, give you whatever information the Union needs
to effectuate a reasonable resolution of the above-men-
tioned grievance. Therefore. attached is a summary of
the information requested. If the Union is desirous of a
meeting to discuss this matter further we will be pleased
to make the necessary arrangements." The Union re-
sponded by renewing the request for company records
and stating that it "feels no purpose would be served to
meet again on the grievance, as you offered, without the
information requested." Short acknowledged at the hear-
ing that the Union had not requested a mere summary,
and admitted that the requested documents (the daily
time reports and serial lists and the monthly load fore-
casts and Form S-902's) were available but were not fur-
nished to the Union. He claimed, "'n my opinion, the in-
formation we had furnished [the summary] was suffi-
cient." He mentioned no difficulty in furnishing copies of
the requested documents or giving the Union an oppor-
tunity to review the individual time reports of Crew
7299.
The summary "as of' August 15 (not the requested in-
formation for 1977, preceding the grievance) as an
update of Staff Manager Chance's July 19 summary, plus
the "Source of Information" at the bottom. Under "A,"
the summary showed the 12-month daily average of "dis-
patched and cleared trouble reports" for all four teletype
repair crews, Monday through Friday. The five figures
furnished were 48, 46, 44, 40, arid 35, respectively. They
did not include all of the dispatched assignments on the
"Daily Serial List forms." The source given was "Dis-
patch Log of TTY Trouble Reports"--referring to, but
not naming, the Company's 12 preceding monthly "Load
Forecast" reports, which contained information from the
"Daily Serial List" (the one-page list prepared each day
of all dispatches). The Company did not attach the daily
serial lists and monthly load forecast reports, either for
the preceding 12 months or for 1977. The daily serial
lists were needed by the Union to determine whether the
difference in the number of dispatches on the various
days of the week had changed sufficiently during the
year to require the elimination of Monday SN days. (The
five average figures were of little, if any, value in evalu-
ating the grievance.) The monthly load forecast reports,
on which the Company relied to justify the change of
SN days, were needed to determine whether the Compa-
ny made the decision without consideration of all of the
work performed.
Under "B" in the August 15 summary, the Company
showed averages which had been omitted from the "A"
averages of "trouble reports." This part of the summary
indicated the required daily average, for each of the first
8 months of 1978, of teletype "Routines" for the four
teletype repair crews "to meet objection." The averages
ranged from I I to 14. Then next, under "C," the sum-
mary showed the 12-month average of teletype routines
completed on Monday by the four teletype crews to be
eight. According to this information, fewer "routines"
were being performed on Monday than on other days of
the week. Thus. by furnishing the Union with the "A"
average of "trouble reports" for each day of the week.
the Company could show a larger amount of work on
Monday-48--in proportion to the amount of work
during the remaining days of the week--46, 44. 40, and
35-whereas its furnishing of the daily serial lists to the
Union would have revealed smaller differences in the
total amount of work performed. The source of informa-
tion for "C," the average of eight Monday routines, was
indicated to be the same as the source of information for
"A," the average number of trouble reports for each of
the five weekdays, that is, "Dispatch Log of TTY Trou-
ble Reports," which was terminology similar to the
Union's request of "dispatch trouble logs." However, at
the hearing, the Company admitted that the source was
different: not the monthly load forecast reports. as for
"A," but the untitled monthly summary (Form S-902),
which also contained information from the "Daily Serial
List." If these regularly kept documents had been at-
tached to the August 15 summary, they would have re-
vealed the distribution of the routine maintenance on the
respective days of the week throughout the year-there-
by indicating whether it would have been feasible to
defer all or most of the remaining eight Monday routines
to other days of the week. By itself, the single average of
eight routines was of limited value in evaluating the
grievance.
Thus, instead of granting the Union's repeated requests
for "dispatch trouble logs" for all teletype crews for
1977, the Company provided certain averages which
were of little or no value to the Union, and cited as the
source of the averages. "Dispatch Log of TTY Trouble
Reports," referring to but not identifying the monthly
load forecast reports and monthly summaries (based on
the "Daily Serial List"). The Company thereby not only
refused to furnish the information needed by the Union.
but concealed from the Union the names of relevant doc-
uments which the Company kept in the regular course of
business.
At the hearing the Company continued to shift its po-
sition, in an endeavor to justify its refusals over a period
exceeding 9 months, to furnish the Union with the re-
quested documents. District Manager Garner testified
that "In my opinion," the information requested by the
Union "is not relevant to the case and it is confidential
information." To the contrary, on the second day of the
hearing the Company's counsel conceded that the daily
serial lists, load forecasts, and monthly summaries for all
teletype crews were "relevant to the grievance," and the
Company apparently has dropped the unsupported claim
that the information is confidential. In its brief, the Com-
pany admits that the requested Crew 7299 time reports
were "relevant to a legitimate bargaining objective"
C. Contentions and Concluding Findings
The General Counsel contends that the Company vio-
lated Section 8(a)(5) of the Act by refusing to provide
the Union with the requested documents which are rele-
vant and necessary to enable the Union to perform its
duty as the bargaining representative of the employees.
The Union contends that this is an example of the Com-
pany's "blatant refusal to provide documents necessary
to the intelligent processing of the grievance." On the
other hand, the Company contends that it timely gave
the Union, first orally and then in writing, all the infor-
624 I)ECISI()ONS OF NATIONAL. LABOR RELATIONS BOARD)
mation it needed to effectuate an intelligent.resolution of
the grievance. The Company also contends that "there
are no documents in the possession of the Company"
which are called "dispatch trouble log" (as requested by
the Union), and that the Union's request therefore did
not properly identify the "Daily Serial List." the "Load
Forecast," and the untitled monthly summary (Form S-
902). In making such a contention, the Company not
only ignores the fact that it used the load forecast re-
ports and monthly summaries (based on the daily serial
lists) to prepare the August 15 summary furnished to the
Union, but concealed from the Union the Company's
names of these documents by using terminology, "Dis-
patch Log of TTY Trouble Reports."
The evidence shows that the Company initially re-
fused, on two occasions, to provide the Union with any
of the requested information concerning the grievance.
Next the Company refused, on two occasions, to furnish
any company documents unless they were in employees'
personnel history files (referring to the inapplicable set-
tlement agreement discussed above). After a 2-month
delay, the Company gave the Union an oral summary, of
five figures, represented as being a 3-month average of
the number of "customer reports" for each weekday.
Two months later, orally and then in writing, the Com-
pany provided a revised five-figure summary, represent-
ed as being a 12-month average, plus some routine main-
tenance averages. One month later, the Company wrote
the Union, promising to "give you whatever information
the Union needs to effectuate a reasonable resolution of
the above-mentioned grievance," but then attaching only
an updated summary-again failing to furnish the rele-
vant company records which the Union needed to sup-
port its grievance. During this extended period of time,
and at the hearing, the Company asserted shifting posi-
tions regarding its obligations to furnish the documents.
"There can be no question of the general obligation of
an employer to provide information that is needed by the
bargaining representative for the proper performance of
its duties." N.L.R.B. v. Acme Industrial Co., 385 U.S.
432, 435 (1967). Having found that the requested 1977
daily time reports of Crew 7299 and the 1977 "Daily
Serial List," monthly "Load Forecast," and untitled
monthly summary (Form S-902) for all four teletype
crews were relevant and necessary for the Union's evalu-
ation of the Crew 7299 grievance, I find that good-faith
bargaining required the Company to furnish these docu-
ments to the Union. Accordingly, I find that from March
16 until the hearing, the Company violated Section
8(a)(5) and (1) by refusing to furnish the Union the re-
quested company records.
CONCIUSIONS O LAW
1. By instructing employee Gottschalk's union steward
to remain silent during an investigatory interview which
Gottschalk was required to attend, the Company unlaw-
fully deprived Gottschalk of the union representative's
counsel and assistance during the interview, thereby in-
terfering with the Section 7 right of employees to act in
concert for mutual aid and protection, and engaging in
an unfair labor practice affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of
the Act.
2. The Company did not unlawfully deprive employee
Brooks of union representation.
3. The Company did not, under all of the circum-
stances, violate the Act by refusing to furnish the Union
copies of documents from employee Martin's personnel
history file without his written request.
4. By refusing to furnish the Union with certain re-
quested documents which were relevant and necessary
for the Union's evaluation of the pending Teletype griev-
ance, the Company violated Section 8(a)(5) and (1) of
the Act.
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Re-
spondent to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies
of the Act as set forth in the recommended Order below.
[Recommended Order omitted from publication.]