Southwestern Bell Telephone Co.

National Labor Relations Board - Board Decisions

Nov 20, 2002

338 N.L.R.B. 552 (N.L.R.B. 2002)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 552
Southwestern Bell Telephone Company and Commu-
nications Workers of America, Local 6333, af-
filiated with the Communications Workers of
America, AFL–CIO. Case 17–CA–21366
November 20, 2002
DECISION AND ORDER
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
On April 26, 2002, Administrative Law Judge Mary
Miller Cracraft issued the attached decision. The General
Counsel filed exceptions, a supporting brief, an answering
brief, and a reply brief. The Respondent filed cross-
exceptions, a supporting brief, an answering brief, and a
reply brief.
The Board has considered the decision and the record in
light of the exceptions and briefs and has decided to affirm
the judge’s rulings, findings,1 and conclusions and to adopt
the recommended Order.
We adopt the judge’s dismissal of the complaint’s alle-
gation of a Weingarten violation based on the conclusion
that Paz could not have had a reasonable belief that the
August 27, 2001 meeting would result in discipline. As
the judge found, there is no basis for concluding that Paz
could have reasonably believed that the August meeting
would result in discipline because of his low production
numbers. In so adopting, we note that, apart from refer-
ences in the hearing transcript to a “positive discipline”
program, no evidence was introduced as to disciplinary
measures or policies related to an employee’s low produc-
tion performance. It would, therefore, be entirely specula-
tive to conclude that any employee with low production
performance would anticipate discipline. Thus, there was
a failure of proof in support of the assertion that Paz could
have reasonably believed that the August meeting would
result in discipline.
As the judge also found, there is no basis for concluding
that Paz could have reasonably believed that the August
meeting would result in discipline because of his statement
to Caskey concerning Paz’ mental health. Even if Paz
were to receive a management referral to the Respondent’s
Employee Assistance Program (EAP) due to his statement
to Caskey, the judge found that the EAP program is not
disciplinary. In adopting the judge’s finding that the EAP

1 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
We note that no exceptions were filed to the judge’s finding that Paz
made a valid request under NLRB v. J. Weingarten, Inc., 420 U.S. 251
(1975), for union representation.
is not disciplinary, we note that, in fact, the EAP is a bene-
fit provided by the Respondent to the employees.
Our dissenting colleague maintains that the EAP is ir-
relevant, because it was the Workplace Violence Policy
and not the EAP that was of concern to Paz. As our col-
league notes, however, the Weingarten standard is an ob-
jective one. Thus, the standard is not what Paz subjec-
tively believed. Furthermore, the standard is not what an
employee with a history of mental instability would be-
lieve. Rather, under Weingarten, the standard is whether
an employee would reasonably believe that the meeting
would result in discipline. As discussed above, we agree
with the judge that Paz could not have reasonably believed
that discipline would result from the August 27 meeting.
Finally, in adopting the judge’s decision, we do not pass
on the judge’s rejection of the Respondent’s argument that
Supervisor Petty’s assurance to Paz that he did not need a
union representative because the meeting would not affect
Paz’ job security or job status, precludes a finding that Paz
could have reasonably believed that the August meeting
would result in discipline.
ORDER
The recommended Order of the administrative law
judge is adopted, and the complaint is dismissed.

MEMBER LIEBMAN, dissenting.
Under the Supreme Court’s Weingarten decision,1 em-
ployee Roy Paz was entitled to a union representative at an
August 27, 2001 investigatory meeting with management
if Paz reasonably believed that the meeting might result in
disciplinary action.2 As I will explain, under the circum-
stances—Paz’ history of mental instability, prior warnings
to him involving a threat he had made, and his more recent
poor productivity, his fresh statement to a supervisor that
he was “about to snap,” and the unusual intervention of a
high-level manager—Paz would have been foolish not to
think that discipline was possible. Accordingly, I cannot
agree with the judge and my colleagues that there was no
violation of Section 8(a)(1) here.
Factual Background
Paz had a history of mental instability. He had been re-
ferred to the Respondent’s Employee Assistance Pro-
gram (EAP) twice, in 1987 and 1998. The 1998 referral
was accompanied by disciplinary action: Paz had made a
threat determined to be in violation of the Respondent’s
Workplace Violence Policy (WVP), and he was warned
1 NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975).
2 See, e.g., Epilepsy Foundation of Northeast Ohio, 331 NLRB 676,
677 (2000), enfd. in relevant part 268 F.3d 1095 (D.C. Cir. 2001), cert.
denied mem. 122 S. Ct. 2356 (2002).
338 NLRB No. 67
SOUTHWESTERN BELL TELEPHONE CO. 553
that another threat in violation of the policy would cause
his immediate discharge.
On August 1, 2001,3 Paz had a production meeting
with his supervisor, Samuel Petty. Petty conducted pro-
duction meetings of this kind with each member of his
crew on a monthly basis. The meetings were not consid-
ered to be disciplinary. The judge found that Petty him-
self had never disciplined an employee for production
problems. In fact, Petty testified that no one in his crew
had ever failed to meet the Respondent’s production
standards. Nevertheless, at the August 1 meeting Petty
told Paz that his productivity was poor and that he had 6
weeks to bring it up to compliance with the standards.
After the August 1 production meeting, but before Au-
gust 27, Paz told another supervisor, Barbara Caskey,
that “the job sucked and he was about to snap.” Caskey
reported this statement to her immediate supervisor,
Melvin Wilson, the Respondent’s area manager. Wilson
was aware of Paz’ mental health problems, and he de-
cided to meet with Paz personally to evaluate the situa-
tion. In a document summarizing the matter, Wilson
stated that he “wanted to personally hear from [Paz] was
this a cry for help or was he about to put the safety of my
work group in danger.” In addition, Wilson testified that
he was prepared to remove Paz from the workplace if he
determined that Paz was a threat to other employees.
On August 27, Petty told Paz that Paz would be meet-
ing with Wilson that day. It was highly unusual for Wil-
son, who was not stationed at Paz’ facility, to meet
personally with any employee, and Paz knew it. He
asked if a union representative could accompany him to
the meeting. Petty told him that it would not be
necessary, although Petty also denied knowledge of what
the meeting would be about.

The meeting in fact was about Paz’ remark to Caskey.
It also covered his productivity problem, which had not
improved at all in the 4 weeks since the August 1 meet-
ing with Petty. During the meeting, Paz made a separate
remark that was perceived as a threat in violation of the
Workplace Violence Policy. He was discharged for this
August 27 threat. The discharge is not alleged as an un-
fair labor practice in this case.
The Respondent’s WVP states that:

All statements, acts, or other expressions of violence or
violent intent toward another person, or toward another
person’s family or property, made or committed on
Company premises or during the conduct of Company
business, are strictly prohibited regardless of their con-
text. Every such statement, act, or other expression will
be presumed to be serious and will be handled accord-
3 All subsequent dates are in 2001 unless otherwise noted.
ingly. Any employee determined by the Company to
have committed any act prohibited by this policy will
be subject to disciplinary action up to and including
dismissal, civil action, and/or criminal prosecution, as
appropriate under the circumstances.

In addition, the policy is consistent with the warning Paz
received in 1998: an employee’s second violation requires
automatic discharge. The procedure for enforcing the pol-
icy requires, among other things, that any supervisor who
hears a statement that appears to be an expression of vio-
lence or violent intent must report it to his or her immediate
supervisor; an evaluation of the situation is then made by
management. It is readily apparent that both Caskey’s and
Wilson’s responses to Paz’ “about to snap” statement were
consistent with the requirements of the WVP.
Procedural History
The General Counsel alleged that the Respondent’s re-
fusal to permit Paz to have a union representative at the
August 27 meeting violated Section 8(a)(1). The Gen-
eral Counsel theorized that it was reasonable for Paz to
anticipate that the meeting involved his statement to
Caskey and/or his production problem, and that discipli-
nary action might result.
The judge agreed that it was reasonable for Paz to ex-
pect that the meeting would involve his statement or his
productivity, or both. However, she further found that
the “about to snap” statement was a “casual” remark, and
thus no reasonable person could conclude that discipline
might result from a meeting about this statement. She
also found that “under no stretch of the imagination
could Paz’s remark to Caskey rise to the level of a
‘statement, act, or other expression of violence or violent
intent toward another person’” in violation of the WVP.
Concerning the productivity issue, the judge found that
Petty had never disciplined an employee for poor produc-
tion, that on August 27, exactly 2 weeks remained before
the 6-week deadline expired, and that Petty never told
Paz that he would be disciplined if his production did not
improve. She concluded accordingly that Paz could not
have reasonably anticipated that discipline due to poor
productivity might result from the August 27 meeting.
The judge recommended dismissal of the complaint.
Contrary to my colleagues, I cannot agree with the judge.
Analysis
In assessing an employee’s entitlement to union repre-
sentation in cases like this one, what is “reasonable” for
an employee to believe about the possibility of discipline
is measured by an objective standard accounting for all
relevant circumstances. Weingarten, supra, 420 U.S. at
257 fn. 5. Pursuant to Weingarten, it is the employer’s
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 554
obligation to evaluate an investigatory interview situation
from an objective standpoint, i.e., the employer must
determine whether the employee at issue would reasona-
bly believe that discipline might result from the inter-
view. Consolidated Edison Co. of New York, 323 NLRB
910 (1997).
The key facts here are straightforward: Paz was an
employee with a known history of mental instability.
Earlier, he had violated the Respondent’s Workplace
Violence Policy by making a threat of violence. Under
that policy, he was subject to automatic discharge if he
violated the policy again. On August 27, that was as
clear to Paz as it was to the Respondent. Paz had also
recently been told to improve his work production and
been given a deadline of 6 weeks. He had also recently
made a statement to a supervisor that, while ambiguous
with respect to violent content, could be perceived by the
Respondent as a threat, especially coming from someone
with his mental health and disciplinary history. The
breadth of the WVP obviously allows for an investiga-
tion of a statement of this kind in these circumstances.
On August 27, Paz was told that he must meet with an
upper level manager who normally never meets with
employees, and he was not told the purpose of the meet-
ing. Paz asked for a union representative to accompany
him and the request was denied. The meeting was in fact
about the meaning of his statement under the WVP and
about his poor production.
These facts clearly establish that it was reasonable for
Paz to anticipate that he might be disciplined as a result
of the meeting. Not one, but two factors—his remark and
his productivity—could have created in Paz a reasonable
apprehension concerning discipline. And, it was not un-
reasonable for him to anticipate that the Respondent
might link the two matters together in its consideration of
his status. At the time of the meeting, the Respondent
was aware of all these circumstances. And, at the very
least, it should have been aware of how Paz might rea-
sonably interpret them. It is apparent that the Respondent
did not satisfy its obligation to evaluate the interview
situation objectively. Accordingly, its refusal to provide
Paz with a union representative when he requested one
violated Section 8(a)(1).
The judge found that “it is impossible” to conclude
that Paz’ “casual” statement to Caskey could reasonably
cause Paz to believe that discipline might result from the
meeting with Wilson. She further found that “under no
stretch of the imagination” could Paz’ statement be con-
sidered a violation of the WVP. The judge thus sug-
gested that Paz’ sense that discipline might be involved
was irrational. However, her findings are refuted by
what the Respondent actually did. Caskey and Wilson
responded to Paz’ “about to snap” statement consistent
with the WVP.4 Wilson, in particular, made clear that
Paz’ remark caused concern for the safety of other em-
ployees, and he testified that he was prepared to take
disciplinary action if Paz confirmed at the meeting that
his statement was an expression of violent intent. The
WVP is clearly broad enough for the Respondent to de-
termine that Paz’ statement came within it, if other rele-
vant circumstances confirmed a violent intent. Paz’,
Caskey’s, and Wilson’s reactions to the “about to snap”
statement demonstrate what are “reasonable” reactions in
the Respondent’s workplace regarding the WVP. The
judge and my colleagues give too little weight to this
contextual evidence, in favor of their own detached
judgment.
In addition, both the judge and the majority mistakenly
focus on whether Paz surmised that the “about to snap”
statement might trigger an EAP referral, observing that
the Respondent’s EAP is not considered a “disciplinary”
program. Whether or not the EAP has a disciplinary ele-
ment is immaterial, because it was the WVP, not the
EAP, that was reasonably of concern to Paz. The WVP,
in turn, clearly did have a disciplinary component with
special application to him.
Paz’ productivity was, of course, another issue of con-
cern. On August 1, Petty told Paz that his productivity
was poor and that he had 6 weeks to improve. Both the
judge and the majority seem to think that it would have
been unreasonable for Paz to believe that his poor pro-
duction figures might be a cause for discipline at the
meeting with Wilson. The judge suggests that Petty
mentioned no disciplinary consequence, and my col-
leagues say that the General Counsel did not supply evi-
dence of the disciplinary measures the Respondent takes
in response to poor productivity.
But these points miss the mark. Surely, when an em-
ployee is notified that his production is unsatisfactory
and is given a specific deadline for improvement, a dis-
ciplinary consequence is implicit. Otherwise, the warn-
ing (itself disciplinary) is a meaningless gesture. Paz
was fully aware that his productivity had not improved
over 4 weeks as of August 27. Given the prior warning,
it was wholly reasonable for him to conclude that his
failure to improve might lead to some sort of discipline.
He was also fully aware of the possible consequences
(automatic discharge) of his “about to snap” statement if
that statement was evaluated by management to be a vio-
lation of the WVP. At the very least, it was reasonable

4 As described above, the WVP requires that any supervisor who
hears a statement that appears to be an expression of violence or violent
intent must report it to his or her immediate supervisor; management
then makes an evaluation of the situation.
SOUTHWESTERN BELL TELEPHONE CO. 555
for Paz to anticipate that discipline might result if the
Respondent considered the two matters in tandem, even
though the 6-week deadline on the productivity issue had
not expired. Indeed, it would have been foolhardy for
him to have ignored that possibility.
Failing to find a violation of Paz’ Weingarten right is
inconsistent with controlling law and with common
sense. Accordingly, I dissent.5

Naomi L. Stuart, Esq., for the General Counsel.
Christian A. Bourgeacq, Esq., of Austin, Texas, for the Respon-
dent.
DECISION
STATEMENT OF THE CASE
MARY MILLER CRACRAFT, Administrative Law Judge. This
case was tried in Overland Park, Kansas, on February 21, 2002.
At issue is whether Respondent Southwestern Bell Telephone
Company violated Section 8(a)(1) of the Act by denying the
request of employee Roy Stephen Paz to be represented by
Communications Workers of America, Local 6333, affiliated
with the Communications Workers of America, AFL–CIO (the
Union) during an interview which Paz allegedly reasonably be-
lieved would result in disciplinary action against him. 1
On the entire record, including my observation of the de-
meanor of the witnesses,2 and after considering the briefs filed by
the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent, a corporation with an office and place of business
located at 9000 Santa Fe, Overland Park, Kansas, is engaged in
the business of providing telephone and related services. During
the 12-month period ending August 1, 2001, Respondent derived
gross revenues in excess of $100,000 and purchased and received
at its facility goods valued in excess of $50,000 directly from
points outside the State of Kansas. Respondent admits and I find
that it is an employer engaged in commerce within the meaning
of Section 2(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.

5 With respect to an appropriate remedy for the Respondent’s viola-
tion, I acknowledge that Taracorp, Inc., 273 NLRB 221 (1984), might
preclude Paz’ reinstatement, because his discharge was not in retalia-
tion for the exercise of his Weingarten right. I have not passed on the
Taracorp rule in previous cases. In this case, I would consider a rein-
statement remedy for Paz, and I would consider overruling Taracorp if
necessary.
1 The Union filed the charge on September 21, 2001. The Union
filed the amended charge on November 20, 2001. The complaint was
issued on December 17, 2001. All dates are in 2001 unless otherwise
specified.
2 Credibility resolutions have been made based on a review of the
entire record and all exhibits in this proceeding. Witness demeanor and
inherent probability of the testimony have been utilized to assess credi-
bility. Testimony contrary to my findings has been discredited on some
occasions because it was in conflict with credited testimony or docu-
ments or because it was inherently incredible and unworthy of belief.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Background
Systems technician Paz worked as a special services installer.
He was dispatched to Respondent’s customers from Respon-
dent’s special services center at 9000 Santa Fe in Overland Park,
Kansas, to install high-speed data circuits. Three crews worked
out of that special services center: two installation crews and one
repair crew. Samuel Lee Petty II, manager of special services,
was Paz’ direct supervisor. The other installation crew was man-
aged by Barbara Lynn Caskey, also a manager of special ser-
vices. Melvin Wilson, area manager special services, directly
supervises Petty and Caskey. Respondent admits that Wilson,
Petty, and Caskey are supervisors and agents of Respondent
within the meaning of Section 2(11) and (13) of the Act.
Paz’ normal work hours were from 8 a.m. to 4:45 p.m. Typi-
cally the first order of business each day is a crew meeting held
by Petty. Usually, crew meetings last about 15–20 minutes and
consist of disseminating information about traffic accidents and
problems that other employees have encountered. One of the
employees distributes a load sheet setting forth the day’s assign-
ments. At the end of the crew meetings, all of the employees get
ready to depart the crew room for their assignments. All work is
performed outside the facility.
Production
Paz and Petty routinely met once a month to discuss Paz’ pro-
duction statistics as measured by a “tech score database.” Petty
has identical meetings with each employee on his crew.3 Re-
spondent viewed these meetings as counseling sessions. No
discipline has ever been attached to these sessions. In fact, Petty
has never disciplined any employee for productivity problems.
Paz testified he thought that Petty might have placed him on a
Performance Improvement Plan (PIP). Petty told Paz he needed
to be more productive and he needed to eliminate overtime when
they met on about August 1. According to Paz, Petty gave him,
“like I guess it was a month-and-a-half or so” to increase his
production. No formal documents or program was put into place.
Paz acknowledged that Petty did not use the term “PIP” and that
Petty did not say what would happen if Paz failed to improve.
Petty denied that Paz had ever been placed on a PIP.
I find Paz’ testimony regarding the existence of a PIP on about
August 1, to be a bit speculative and self-serving. On a different
occasion, Paz had been placed on a formal PIP. He admitted he
3 Paz disputed Petty’s assertion that Petty met regularly with all crew
members regarding their production. I credit Petty’s testimony that he
does hold regular meetings with all crew members. Paz was asked on
cross-examination whether he had any knowledge about other crew
members having regular meetings with Petty and he responded, “Just
from what they have told me.” This was followed up with, “and they
told you that there have been such meetings?” to which Paz responded,
“I was told that they were very surprised that Sam [Petty] was having
these meetings with me because a couple of them had had numbers that
were roughly equivalent to mine and hadn’t been put on a PIP.” Al-
though Paz responded somewhat evasively, his answer appears to con-
cede that other crew members had been made aware of their numbers.
This is consistent with Petty’s testimony regarding regular meetings.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 556
knew there were documents involved in the PIP procedure. None
of those documents were utilized by Petty on August 1. More-
over, Paz knew that a PIP lasted 3 months—not the 6 weeks
Petty had given him for improvement. In any event, it is undis-
puted that Petty never told Paz that he was “warning” him about
his production or that he needed to improve or he would receive a
warning. Accordingly, I find that Paz was not placed on a PIP.
Rather, he was told to improve his productivity and decrease his
overtime in a regularly held, nondisciplinary coaching and coun-
seling meeting. There was no discipline attached.
Employee Assistance Plan and Workplace Violence
Paz had been placed in mandatory Employee Assistance Pro-
grams (EAP) on two occasions during his tenure. One of these
occasions took place from 1987 to 1989 and the other was in
1998. Respondent’s EAP envisions three categories of use.
First, it allows employees to voluntarily avail themselves of the
program. Second, management may refer an employee to EAP
on a nonmandatory basis. Neither of these first two options is
disciplinary. However, a third category involves management
referral for violation of the workplace violence policy, the sub-
stance abuse policy, or the driving record review policy. Failure
of the employee to participate in EAP or follow recommenda-
tions will result in disciplinary action or job jeopardy in this third
category. Both of Paz’ prior referral’s to EAP were in the third
category.
The 1998 referral to mandatory EAP was based on a violation
of Respondent’s Workplace Violence and Threats of Violence
policy. Paz received a written warning and was informed that if
he violated this policy a second time, he would be discharged.
Request that Paz Meet with Wilson
As Paz was getting ready to leave the crew room to go on his
assignments on August 27, Petty told him to “stick around” be-
cause Melvin Wilson wanted to meet with Paz. Petty and Paz
went into Petty’s office and closed the door. It was about 8:25
a.m. No one else was present in the office.4
Employee’s One-On-One Meetings with Wilson, Generally
Wilson had never been present at any of Petty’s meetings with
Paz. When asked whether Paz was aware of occasions when
Wilson came to the service center other than for recognition
ceremonies, Paz responded, “From my own observation, I hadn’t
seem him come to the work center unless there was a specific
problem with a particular employee or a particular group of em-
ployees. And in that case, he would come and address the prob-
lem.” Paz was further questioned, “In your experience when Mr.
Wilson came to talk to an employee and the employee’s direct
supervisor, was there a problem for the employee?” Paz re-
sponded, “Normally it wasn’t–wasn’t anything that was going to
be good.” I reject this testimony as nonspecific, vague, and self-
serving. In fact, there is no specific evidence that Wilson had
ever met individually with any unit employee. Indeed, when Paz

4 According to Petty and Wilson, Wilson was at the facility to con-
duct a recognition ceremony which lasted until about 10 a.m. Petty and
Wilson believe they met with Paz at around 10:30 a.m. It is not impor-
tant to this analysis whether the parties met at 8:25 or 10:30 a.m. Ac-
cordingly, Paz’ subjective speculations regarding being placed on a PIP
will be disregarded.
was asked, “any other occasions (than recognition day) that you
know of that would bring Mr. Wilson to the facility” he re-
sponded, “Not under normal circumstances.”
As it turned out, Wilson was concerned about Paz’ mental and
emotional state. Caskey reported to Wilson that Paz had told her
during a casual conversation that “the job sucked and he was
about to snap.” Wilson knew that Paz had a history of mental
health problems related to Vietnam combat experiences. Petty
was not privy to this information so Wilson decided he would
meet with Paz personally to assess the situation.
Request for Union Representative
Paz asked Petty what the meeting with Wilson was about.
Petty said he “wasn’t sure.”5 Petty said Wilson would be there in
a few minutes. Paz asked, “if it would be okay to have a Union
steward present in the meeting.” Petty said it would not be nec-
essary. Paz said, “In other words, this meeting won’t affect my
job status or my job security, is that right?” Petty said, “that’s
right.”6 Wilson arrived 5 or 10 minutes later and the interview
proceeded with no further discussion of union representation for
Paz.
B. Framework for Analysis
In NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), the
Court held that employee insistence on the presence of a union
representative at an investigatory interview which the employee
reasonably believes might result in disciplinary action, is pro-
tected concerted activity. Once an employee makes a request for
union representation, the employer may grant the request, discon-
tinue the interview, or offer the employee the choice between
continuing the interview without a representative or having no
interview at all. Consolidated Freightways Corp., 264 NLRB
541, 542 (1982); General Motors Co., 251 NLRB 850, 857
(1980), end. in relevant part 674 F.2d 576 (6th Cir. 1982).
In order to determine whether Respondent violated Section
8(a)(1) when it told Paz that a union representative would not be
necessary, three issues must be determined:

Whether Paz made a valid request for a Union representa-
tive.
Whether Paz had a reasonable belief that the interview
might result in disciplinary action.
Whether Respondent improperly denied the request.
C. Analysis
Did Paz Make a Valid Request for a Union Representative
The Weingarten “right arises only in situations where the em-
ployee requests representation. In other words, the employee
5 Indeed, it appears that Petty knew that he was going to go over
Paz’ production statistics with him. No discipline had ever occurred
pursuant to production counseling sessions. Petty also knew that Wil-
son wanted to speak to Paz about Paz’ “well being.”
6 Petty agreed that Paz asked whether he needed a union representa-
tive and whether the meeting would be job affecting. Petty did not
mention and was not asked whether Paz asked him why Wilson wanted
to talk with Paz. I find that Paz credibly testified that Petty stated he
did not know why Wilson wanted to talk with Paz. This is consistent
with Petty’s testimony. Petty was aware of only a nebulous topic of
“well being” but did not know the specifics.
SOUTHWESTERN BELL TELEPHONE CO. 557
may forgo his guaranteed right and, if he prefers, participate in an
interview unaccompanied by his union representative.” Weingar-
ten, 240 U.S. at 257.
Paz’ question to Petty, “Would it be okay to have a Union
steward present?” sufficiently invoked Weingarten. Clearly, Paz
asked if he could have a union steward present at the interview.
See, e.g., Consolidated Edison Co. of New York, 323 NLRB 910,
916 (1997) (“I need a Union Steward;” “Do I need anybody here
with me?” “Do I need a shop steward?” found sufficient to trig-
ger Weingarten); Southwestern Bell Telephone Co., 227 NLRB
1223, 1223, and 1227 (1977) (relied on by counsel for the Gen-
eral Counsel) (employee who asked if they should obtain union
representation and employee who stated, “I would like to have
someone there that could explain to me what was happening”
sufficiently notified the employer that the employees desired
Weingarten representation); Bodolay Packaging Machinery, 263
NLRB 320, 325–326 (1982) (Weingarten rights are triggered by
the employee asking whether he needed a witness).
As noted by counsel for the General Counsel, it was not neces-
sary for Paz to repeat to Wilson his question regarding presence
of a union steward. Petty, to whom the question was propounded,
was present throughout the meeting. Amoco Oil Co., 278 NLRB
1, 8 (1986) (request need not be repeated where supervisor to
whom the original request was made was present at later meet-
ing) (relied on by counsel for the General Counsel); Lennox In-
dustries, 244 NLRB 607, 608 (1979), enfd. 637 F.2d 340 (5th
Cir. 1981), cert. denied 452 U.S. 963 (1981) (employee who has
made request for representation on plant floor need not repeat the
request at the interview).
Did Paz have a Reasonable Belief that the Interview
Might Result in Disciplinary Action
At the time of the meeting, Paz was not informed about the
purpose of the meeting. Although Paz’ supervisor told Paz that
the meeting would not affect Paz’ job status or job security, this
assurance must be discounted because Petty also told Paz that he
did not know why Wilson wanted to meet with Paz.
Counsel for the General Counsel argues that “a reasonable
person standing in Paz’ place at the outset of the meeting would
believe that there was a possibility that an investigation could
result in discipline or adverse job action.” Counsel notes that
about 4 weeks prior to August 27, Petty gave Paz a deadline of 6
weeks to improve his production levels. Counsel also notes that
on two prior occasions, Paz had been required to submit to man-
datory EAP counseling. Paz received discipline for one of the
incidents which led to EAP.
Weingarten requires the employer to evaluate the employee’s
request for representation on an objective basis under all the cir-
cumstances. Weingarten, supra, 420 U.S. at 257 fn. 5. It is ir-
relevant that there might have been no intent to discipline Paz on
Respondent’s part when it began the interview. Nor is it a de-
fense that the Respondent’s only purpose in conducting the inter-
view was to engage in fact finding. Consolidated Edison of New
York, 323 NLRB 910 (1997). Quite important to his case is the
Court’s admonition in Weingarten that an employee’s “reason-
able belief” will be measured by objective standards under all the
circumstances of the case. The Court specifically rejected any
rule that required probing an employee’s subjective motivations.
Weingarten, 420 U.S. at 257 fn. 5.
Based on the objective facts under all the circumstances of the
case, I find that Paz could not reasonably have concluded that the
interview might result in disciplinary action. Initially, I have
discounted Petty’s assurance to Paz that the meeting would not
affect Paz’ job status or job security because, in the same breath,
Petty admitted to Paz that he did not know why Wilson wanted to
speak to Paz. Accordingly, I do not find Petty’s assurance to Paz
a factor in determining whether a reasonable belief could have
been founded on the evidence before Paz.7
On an objective basis, as an employee with a well-known need
for professional mental health assistance, Paz might reasonably
have concluded that Wilson had been advised of his remarks to
Caskey 1 week prior to the interview that “the job sucked and he
was about to snap.” From this conclusion, Paz might have
formed a reasonable belief that Wilson wished to speak to him
regarding his statement to Caskey. However, because his state-
ment to Caskey was no more than a casual remark, it would not
be reasonable to conclude that discipline might result from a
meeting concerning this statement. Moreover, if Paz formed a
belief that Respondent’s EAP might be discussed during the
interview because of his remark to Caskey, it should be noted
that the EAP program is not a disciplinary program according to
Respondent’s policies.8 Accordingly, it is impossible to base a
reasonable belief that discipline might result from meeting with
Wilson based on Paz’ remark to Caskey.
Paz also knew that Wilson was aware of his request to transfer
to Topeka, Kansas, so that he could receive counseling from the
VA Hospital located there. Certainly, a reasonable belief that
discipline might result could not be based on a discussion about
Paz’ request for a transfer.
As an employee who had been counseled about poor produc-
tion, Paz might reasonably have concluded that Wilson wished to
talk about his poor production. However, it is not possible to
reasonably conclude that such a discussion would lead to disci-
pline. First, Petty has never disciplined any employee for
production problems. Second, even if Petty were inclined to con-
sider discipline for production problems, there was still a 2-week
period remaining in the time given Paz by Petty to show
improvement. Third, Petty did not tell Paz that failure to improve
would lead to disciplinary action. It would not be reasonable,
therefore, to believe that the interview might result in disciplinary
of the policy.
7 Cf., Amoco Chemicals Corp., 237 NLRB 394, 397 (1978) (supervi-
sor’s advice that no disciplinary action would occur as result of meeting
effectively dissipated any reasonable grounds to fear disciplinary ac-
tion); Spartan Stores, Inc. v. NLRB, 628 F.2d 953, 958 (6th Cir. 1980)
(supervisor’s assurance of no discipline meant the employee could not
have reasonably believed the meeting might result in discipline).
8 See, e.g., Postal Service, 252 NLRB 61 (1980), relied on by
Respondent, in which the Board stated that a fitness for duty
examination which was not part of a disciplinary procedure did not fall
within the purview of Weingarten. The fact that Paz had received a
warning for a statement he made which also led to referral to manda-
tory EAP is not relevant to the instant situation. Respondent’s
Workplace Violence and Threats of Violence policy covered the state-
ment for which Paz was warned. Under no stretch of the imagination
could Paz’ remark to Caskey rise to the level of a “statement, act, or
other expression of violence or violent intent toward another person” in
violation
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 558

to believe that the interview might result in disciplinary action
regarding production levels.9
Counsel for the General Counsel argues that a conversation
about improving employee production standards may trigger
Weingarten, “if the meeting is sufficiently linked to a real pros-
pect of discipline . . . for poor production,” citing Quazite Corp.,
315 NLRB 1068 (1994). In Quazite, employee Sartin had re-
ceived a written warning for low production prior to being called
into a meeting with his supervisor. Supervisor Robbins told Sar-
tin to come with him to his office and explained that the purpose
of the meeting was to discuss Sartin’s production. Under these
circumstances, employee Sartin had a reasonable expectation that
discipline might result. Id. at 1069. Contrary to the situation in
Quazite, Paz had no prior discipline for his production, no threat
of discipline loomed, and no employee had ever been disciplined
for poor production by Petty. Accordingly, I find Quazite distin-
guishable.
Counsel also relies on Alfred M. Lewis v. NLRB, 587 F.2d 403
(9th Cir. 1978), enfg. in part 299 NLRB 757 (1977). In that case,
employees were counseled pursuant to the employer’s production
quota and disciplinary system. The counseling was an integral
and preliminary step to imposition of discipline. Clearly, em-
ployees had an objective basis for a reasonable belief that disci-
pline might result. Such objective facts are not present in the
instant case.
Because Wilson was a superior rarely seen at Paz’ facility ex-
cept for monthly gatherings, Paz might reasonably assume that a
private meeting with Wilson was out of the ordinary. However,
there is no evidence that Wilson’s presence has led to discipline
because there is no specific evidence that Wilson has ever had a
meeting with an employee. Hence, there is no evidence that a
meeting with Wilson might lead to discipline. Accordingly, it
would not have been reasonable for Paz to view the mere pres-
ence of Wilson as indicative that the interview might result in
disciplinary action.

9 See, e.g., Northwest Engineering Co., 265 NLRB 190, 191 (1982),
in which the Board noted that Weingarten rights do not apply to meet-
ings held to advise employees of the employer’s valid work perform-
ance expectations. Cf., Lennox Industries, supra at 608 (employee
Nestle could reasonably conclude that discipline would result when he
was asked to go to supervisor Ary’s desk, in light of Ary’s prior admo-
nitions to Nestle that Nestle needed to acquire greater speed or action
would be taken against him and his work was “not going to make it.”)
Thus, based on the objective facts available at the commence-
ment of the meeting, I am unable to conclude under all the cir-
cumstances of this case that Paz could reasonably have believed
that the meeting might result in disciplinary action. This conclu-
sion is consistent with the policy underlying Weingarten.10 In
any event, Paz was indeed terminated on September 3, for a state-
ment he allegedly made during the interview on August 27. Paz’
discharge is not at issue in this proceeding. Rather, it is the
subject of a grievance proceeding. The fact of Paz’ discharge is
not relevant to consideration of whether he had a reasonable
belief that the interview might result in disciplinary action.
CONCLUSION OF LAW
By denying the request of its employee Roy Stephen Paz to be
represented by the Union during an interview, Respondent did
not violate Section 8(a)(1) of the Act because the employee did
not have a reasonable belief that the interview might result in
disciplinary action. Accordingly, Respondent did not interfere
with, restrain, and coerce employees in the exercise of the rights
guaranteed in Section 7 of the Act.
On these findings of fact and conclusion of law and on the en-
tire record, I issue the following recommended11
ORDER
The complaint is dismissed.
10 The presence of a union representative at an interview is based on
the Sec. 7 employee right to act in concert for “mutual aid and protec-
tion.” Denial of this right reasonably tends to interfere with, restrain,
and coerce employees in violation of Sec. 8(a)(1). Thus it is a serious
dilution of the employee’s right to act in concert when an employer
compels an employee to appear unassisted at an interview which may
put his job security in jeopardy. Weingarten, supra, 420 U.S. at 256–
257, quoting Mobil Oil Corp., 196 NLRB 1052 (1972). By the same
token, if there is no reasonable basis for concluding that the meeting
will place job security in jeopardy, the Sec. 7 right does not come into
play. The Court specifically noted that it would not normally extend
the rule to giving instructions or training or correcting work techniques.
Id. at 257–258.
11 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.