Storer Communications Of Jefferson County, Inc

National Labor Relations Board - Board Decisions

Feb 8, 1989

292 N.L.R.B. 894 (N.L.R.B. 1989)

894 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Storer Communications of Jefferson County, Inc
and Kenny Guess and Donald Ray Wheeler
Cases 9-CA-25251 and 9-CA-25283
February 8, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
On September 14, 1988, Administrative Law
Judge Richard L Denison issued the attached deci-
sion The Respondent filed exceptions and a sup-
porting brief
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, i and
conclusions2 and to adopt the recommended
Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Storer Com-
munications of Jefferson County, Inc, Jefferson
County, Kentucky, its officers, agents, successors,
and assigns , shall take the action set forth in the
Order
i The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance 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
2 In adopting the judge s determination that he December 28 1987
meeting was investigative in nature it is unnecessary to rely on Oper
ations Manager Stevens handwritten statement G C Exh 4 Even as
summg arguendo that this document falls within the attorney-client
privilege and that the privilege was not waived Stevens January 11
1988 typewritten letter to Charging Party Guess provides sufficient cor
roboration of credited testimony to warrant the finding that the Respond
ent was still in the investigatory process on December 28 1987
Linda B Finch Esq, for the General Counsel
William P Burns Esq, of Coral Gables, Florida, and Pa
tricia F Weisberg Esq (Walter Haverfield Buescher &
Chockley), of Cleveland, Ohio, for the Respondent
DECISION
STATEMENT OF THE CASE
RICHARD L DENISON , Administrative Law Judge
This consolidated proceeding was heard in Louisville
Kentucky on June 17 , 1988, pursuant to a charge filed in
Case 9-CA-25251 by Kenny Guess and a charge filed in
Case 9-CA-25283 by Donald Wheeler on March 24 and
30, 1988 , respectively The consolidated complaint
issued May 3 1988 and amended at the hearing, alleges
that the Respondent violated Section 8(a)(1) of the Act
on or about December 28, 1987, when its supervisors
denied a request by three of its employees for union rep
resentation at an interview conducted in the context of
circumstances concerning which it was reasonable to be
lieve discipline would result
The Respondents answer denies the allegations of
unfair labor practices alleged in the complaint The Re
spondent argues that the meeting in question was not an
investigative interview, and that no employee request for
union representation was made On the entire record in
the case including consideration of briefs and observa
tion of witnesses, I make the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I JURISDICTION
Based on the allegations in paragraph 2 of the consoli
dated complaint , admitted in paragraph 2 of the answer
I find that the Respondent is an employer engaged in
commerce within the meaning of Section 2(2) (6) and
(7) of the Act
II LABOR ORGANIZATION
Based on the allegations in paragraph 3 of the consoli
dated complaint , admitted in an oral amendment to the
answer , I find that International Brotherhood of Electra
cal Workers Local 2100, AFL-CIO (IBEW) is a labor
organization within the meaning of Section 2(5) of the
Act
III SUPERVISORS
Based on the allegations in paragraph 4 of the consoli
dated complaint admitted in paragraph 4 of the answer
and the admissions and other undisputed evidence in the
record I find that at all times material the following
named persons have occupied the positions set forth op
posite their respective names and have been and are
now at all times material, supervisors and agents of the
Respondent, acting on its behalf within the meaning of
Section 2(11) and 2(13) of the Act, respectively
John W Stevens Jr Operations Manager
Cha-les King Technical Operations
Manager
Tom Spencer Plant Manager Okolona
Facility
Mike Datillo Supervisor
IV LABOR RELATIONS HISTORY AND APPROPRIATE
UNIT
Based on allegations contained in paragraphs 5 and
6(a) of the complaint , admitted in the answer , and a stip
ulation by the parties, I find the following On December
16, 1987, International Brotherhood of Electrical Work
ers, Local 2100 , AFL-CIO (IBEW) (the Union or Local
2100) was certified , in Case 9-RC-14862, as the exclusive
collective bargaining agent of Respondents employees in
the following unit appropriate for the purposes of collec
292 NLRB No 105
STORER COMMUNICATIONS
tive bargaining within the meaning of Section 8 (b) of the
Act
All operation, production, service, construction and
maintenance employees, including office clericals,
customer service and dispatchers employed by Re
spondent at its Jefferson County, Kentucky loca
tions, but excluding all other employees, guards,
and supervisors as defined in the Act
At the time of the hearing in this proceeding, the va
lidity of the certification was being tested
V THE UNFAIR LABOR PRACTICES
Respondent's business is the operation for profit of a
cable television system in Jefferson County, Kentucky,
including the city of Louisville From offices located in
an administration building at Shively, Kentucky, Oper
ations Manager John W Stevens, through his subordi
nate supervision, directs the day to day operations at
eight facilities, including the Okolona hubsite, the main
transmission unit for Respondent's system Respondent
employs some 230 employees among whom, until De
cember 30, 1988, were service technician Donald Wheel
er, line technician Kenny Guess, and Troy Harlow
In addition to Christmas Day, Friday, December 25,
1987, the Respondent gave all employees not needed to
operate the system a half day off, after all work was
completed on December 24 Thus, Donald Wheeler,
Kenny Guess, and Troy Harlow ceased work sometime
shortly after noon that day Guess, however, was re
leased from work subject to being on call for emergency
repairs, and was assigned a company bucket truck to
take with him for that purpose It is undisputed that,
after being relieved from duty, these three employees se
cured one half gallon of Jim Beam whiskey, which they
proceeded to consume in the parking lot and in the
building at Okolona, during the course of which an am
plifier was smashed against a metal door The early
stages of the drinking were observed by Supervisor Mike
Datillo to whom they offered a drink, which he refused,
before he left the premises I Sometime thereafter this in
toxicated and destructive celebration was heard and ob
served by employee Laura Winstel who alone had been
assigned the duty of staffing the master control room
during the holidays Winstel telephonically reported the
incident to her supervisor Kathy Houck 2
Charles King has been employed by the Respondent as
technical operations manager since May 25 1987 He is
responsible directly to Operations Manager Stevens for
system wide signal quality, maintenance work and cus
tomer service The firsthne supervisors who oversee this
phase of Respondents work report to him About 4 p in
on December 24, 1987, King received a telephone call
from Acting Supervisor Gary Mitchell, who described
the revelry that was taking place at Okolona King told
Mitchell to meet him at the facility, but not to enter the
building unless he was accompanied by a supervisor
' Datillo no longer worked for the Company at the time of hearing
and consequently did not testify
2 Neither wmstel nor Houck (whose name sometimes appears in the
record as Hauck or Hock ) testified at the hearing
895
Shortly thereafter as King was driving south from Lou
isville on Interstate 65 toward Okolona he observed the
company bucket truck assigned to Kenny Guess pro
ceeding north driven by Donald Wheeler On arriving at
the Okolona hubsite King met Mitchell, electronic tech
nician Roger Sweeney , and Supervisor Mike Datillo
waiting in the parking lot behind the building These
three men reported that as they were arriving Wheeler
was in the process of driving the bucket truck out of the
parking lot with Guess in the passenger seat , but that the
third celebrant , Troy Harlow , was still in his car , asleep
After observing Harlow 's condition, King and the other
three men entered the building through the back door
Inside they at once obser% ed that the company amplifier
had been thrown several times against a metal door
There were several marks on the door and the amplifier
housing was still on the floor They also discovered an
empty whiskey bottle , some cups , ice, and a 7 Up bottle
After talking with Laura Winstel , King called Operations
Manager Stevens , reported what he had learned and ob
served , and recommended that the three employees in
volved be discharged King testified that Stevens agreed
with his recommendation , however, Stevens' testimony
clearly reveals that King 's recommendation was not ac
cepted at that time Stevens testified that after King in
formed him concerning what had transpired at Okolona
and recommended termination , he said no Instead, he in
structed King to conduct a full investigation , including
obtaining photographs , written statements, and a written
report from each of the people who were witnesses to
the event Stevens also set a meeting of his supervisor for
Monday morning December 28 at his office in the ad
ministration building at Shively He specifically cau
tioned King that he did not want to act before talking to
all the parties According to King , after relaying Ste
vens orders to the supervisors , he dictated his observa
tions into a portable dictaphone
King next turned his attention to the concern created
by his direct knowledge of the fact that a company
bucket truck was being driven on the highway by intoxi
cated employees King asked Datillo to request that on
call employee June Dale come to Okolona When Dale
arrived King, Datillo , and Dale drove to Donald Wheel
er's house where , as they anticipated , they found the
bucket truck in Wheelers driveway Kenny Guess was
sitting asleep in the passenger seat Then Datillo went to
the front door of the house while the others stood by
Wheeler answered the door and talked with Datillo
while the others listened Datillo told Wheeler he was
suspended with pay because of the Okolona incident, and
demanded Wheelers keys to the Okolona building, the
truck, and Wheelers identity card Wheeler complied
and then assisted Datillo in helping Guess from the truck
into the house After obtaining Guess ' identity card, Da
tillo drove the truck back to the hubsite , followed by
King and Dale
During the course of the holiday weekend the em
ployees were notified by supervision, through separate
telephone calls, that their suspension with pay would be
in effect at least until they met with Stevens in his office
on December 28 at 9 a in Also , according to undisputed
896 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and credited testimony by Jack Rawlings an employee
and negotiating committeeman for Local 2100, each of
the three employees called him on the afternoon of De
cember 24, described the incident, and reported that they
had been suspended pending a meeting with management
on December 28 Rawlings told each of them that he
would notify Local 2100, but that they should call him
before attending the meeting Rawlings then alerted
Union Representative Noyes of the suspension
Early on the morning of December 28, Rawlings
called Guess at his home about 7 45 am Rawlings told
Guess that he had the right to have a union representa
tive present at the meeting if he wished He asked what
time the meeting was set to begin Guess gave Rawlings
the time, and said he would probably ask for a union
representative Rawlings then attempted to call Wheeler
and Harlow at home, but failed to reach them He next
called Respondents Shively office and left messages with
receptionist Yvonne Williams to tell Wheeler and
Harlow to call him before the meeting Harlow did not
return the call, but Wheeler did Rawlings told Wheeler
that he had the right to have a union representative with
him at the meeting , and Wheeler said he would ask for
one Troy Harlow was the first employee to report at
the Shively office about 8 am on December 28, 1987
He was instructed to wait in the breakroom until such
time as management was prepared to meet with the three
employees He was joined at that location by Wheeler
around 8 15 a m, and Guess about 8 30
However , no meeting at 9 a in occurred because Ste
vens arrived late and decided to hold a management
meeting about the incident before talking with the em
ployees According to King, this meeting did not begin
until about 10 45 a m Stevens King Datillo and Mitch
ell were present During the course of the meeting, ac
cording to Stevens and King the supervisors reviewed
their observations of the incident, the written statements
they had obtained and the photographs 3 King renewed
his recommendation that the employees be terminated
but Stevens insisted that he wanted to find out more
about what had transpired by talking to all the parties
before he made a decision He was particularly con
cerned about the fact that he had been unable to confirm
the statements of Winstel and Houck who were away
from work and could not be contacted It was at this
point about 11 a in , that the supervisors meeting ended
Meanwhile, during this waiting period in the break
room and at lunch at McDonald's, the three employees
talked about the trouble in which they found themselves
and what to do in the forthcoming meeting It is undis
puted that during the course of this discussion, Wheeler
stated he had been informed by Rawlings that he could
ask for a union representative to be present Guess au
thorized Wheeler to act as their spokesman during the
meeting, but Harlow did not specifically do so until the
outset of the interview 4
8 Mitchell Datillo Dale and Sweeney did not testify at the hearing
4 This finding is based on the testimony of the three employees con
cernmg what was said in the break room and the testimony of all wit
nesses who participated in the interview about how the meeting coin
menced
Following lunch the employees were called into Ste
vens office around 1 p in Only Stevens and King were
present on behalf of management Although the word
spokesman or spokesperson was never used by the
employees in the meeting, a careful examination of the
testimony of all participants reveals that Wheeler in fact
acted in that capacity 5 Stevens began the meeting by
asking what had happened on December 24 at Okolona
At this point it is clear that the other two employees
looked to Wheeler to give their account of the events
that occurred that day Both Wheeler and Guess testified
that Wheeler began by asking that a union representative
be present if any kind of disciplinary action was being
considered against them Stevens and King specifically
denied that any such request was made Harlow, who ap
peared as a witness for the Respondent, avoided explicit
ness, and, after a display of nervousness and hesitation,
answered counsels leading question by testifying that he
did not hear such a request Stevens and King s testimo
ny about what was said during the course of this meeting
was less detailed than that of Wheeler and Guess More
over King's testimony was fragmentary and unclear as
to the sequence of events, indicating a lack of memory
Thus, when the testimony of Stevens, King, and Harlow
conflicts with or omits details supplied in the account
given by Wheeler and Guess, I credit these two employ
ees I find and conclude that Wheeler acting as spokes
person, requested the presence of a union representative
to represent them at the meeting in the event the Compa
ny was considering disciplinary action against them
based on the events of December 24
Stevens responded to Wheelers request by stating,
We don't recognize the Union King answered,
There s no union at this company" Then Wheeler de
scribed in detail how, after getting off work early at 1
p in on December 24, the three men engaged in a bac
chanal on company premises 6 Wheeler told how the
drinking, which began in the parking lot proceeded to
the stockroom at the hubsite while they engaged "in a
corner bounce game for about 45 minutes to an hour
before he and Guess left the premises He said that later
Datillo called, and then came to the house to get the
truck and notify them that they were suspended until
Monday for drinking on company property Then, in
turn Guess and Harlow spoke They did not change or
embellish Wheelers version but instead limited their re
marks to apologizing for what had happened Stevens
and King brought the interview to a close stating that
they would consider what they had heard, and after talk
ing again to the young lady who had called to report the
incident and Gary Mitchell s people at Okolona, they
would get back to them later about what they were
going to do He said in the meantime they continued to
be on suspension with pay King described the meeting
8 Stevens testimony on cross-examination to the contrary which con
flicts with his testimony on direct examination on this point is not cred
ited
6 Wheeler said that no mention whatsoever was made about Datillo
having seen them drinking because he did not want to get Datillo into
trouble Nor did any of the three employees deny having damaged coin
pany equipment
STORER COMMUNICATIONS 897
as a confession in that it only served to confirm what he
had already learned from others
On Monday afternoon Stevens met with Winstel and
Houck individually The two employees substantiated
their versions of the incident that the witnesses had pre
viously given to Stevens supervisors Accordingly, at his
instructions, King telephoned each of the three suspend
ed employees on Tuesday evening, December 29, and
told them to report to the office of Plant Manager Tom
Spencer at Okolona at 10 a in on December 30 for an
other meeting with Stevens and King At that time the
three employees were terminated for having engaged in
a flagrant violation of the Company s rules concerning
the use of alcoholic beverages on company premises Ef
forts by Guess to persuade management to reduce the
discipline to suspension or probation were rejected On
or about January 4, 1988, with the assistance of the
Union, each of the employees wrote letters to Stevens
requesting a meeting to appeal the Company s decision
This request was denied by Stevens on January 11
Discussion and Concluding Findings
I have found, for reasons set forth above, that the
three suspended employees did in fact request the pres
ence of a union representative during the meeting of De
cember 28, 1987, and that this request was rejected In
NLRB v J Weingarten, 420 US 251 (1975), the Su
preme Court ruled that an employer violates Section
8(a)(1) of the Act when it denies union representation to
an employee during an interview in which the employee
reasonably believes that that interview might result in
discipline, when the employee requests union representa
tion that is denied and followed by the implementation
of disciplinary measures The Respondent argues further
that the meeting it held with Wheeler, Guess, and
Harlow on December 28 was not an investigatory inter
view, and consequently, its denial of union representa
tion to the three employees in that interview did not vio
late the rule of the Weingarten decision I disagree There
was no factual dispute over the salient features of the
events that took place on December 24 The three em
ployees requested union representation in the context of
circumstances that would cause any reasonable person to
believe that some form of discipline would ensue It is
also clear that everyone in attendance at that meeting un
derstood that the purpose of the meeting was to give the
employees an opportunity to tell their side of the story
The fact that the employees version coincides almost
precisely with the information already gleaned by the
Employer does nothing to change the investigatory
nature of the interview This fact is further confirmed by
the January 11, 1988 letter from Stevens to Guess, Gen
eral Counsel's Exhibit 2 and the handwritten statement
that he gave to the Board with the permission of coup
sel during the investigation These documents also refute
any assertion that a decision to discipline the employee
was reached prior to the completion of the investigation
which concluded when Stevens met with Laura Winstel
and Cathy Houck later on the afternoon of December 28
and personally reviewed with them the information they
had previously reported by telephone to company super
visors on December 24 I therefore find and conclude
that the December 28 meeting, which Stevens and King
conducted with Wheeler, Guess, and Harlow, constituted
the type of interview that falls squarely within the ambit
of the Supreme Court s decision in Weingarten and in
denying the three employees union representation in the
context of circumstances in which discipline was reason
ably foreseeable, the Respondent violated Section 8(a)(1)
of the Act
CONCLUSIONS OF LAW
1 The Respondent is an employer engaged in coin
merce within the meaning of Section 2(2), (6), and (7) of
the Act
2 Local 2100 is a labor organization within the mean
ing of Section 2(5) of the Act
3 By requiring employees to participate in employee
interviews or meetings without union representation,
when such union representation has been requested by
employees, when employees have reasonable grounds to
believe that matters to be discussed may result in their
being the subject of disciplinary action, and such discipli
nary action was actually imposed by the Respondent, the
Respondent has violated Section 8(a)(1) of the Act
4 The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Sec
tion 2(6) and (7) of the Act
5 The Respondent has not violated the Act in any re
spects other than those specifically found
THE REMEDY
Having found that the Respondent has engaged in cer
tarn unfair labor practices I find it necessary to order
that the Respondent cease and desist therefrom and take
certain affirmative action designed to effectuate the pole
cies of the Act However, a make whole remedy is not
appropriate Taracorp Inc, 273 NLRB 221 (1984)
Redway Carriers Inc 274 NLRB 1359 fn 4 par 2
(1985)
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
ed7
ORDER
The Respondent, Storer Communications of Jefferson
County, Inc Jefferson County Kentucky its officers
agents, successors, and assigns, shall
I Cease and desist from
(a) Depriving any employee of his right to union rep
resentation at an investigatory interview that the employ
ee reasonably believes might result in disciplinary action
(b) In any like or related manner interfering with re
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
9 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
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 put
poses
898 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(a) Post at all the Respondent's facilities in Jefferson
County, Kentucky copies of the attached notice marked
Appendix "8 Copies of the notice, on forms provided
by the Regional Director for Region 9, after being
signed by the Respondent's authorized representative,
shall be posted by the Respondent immediately upon re
ceipt and maintained for 60 consecutive days in conspic
uous places including all places where notices to employ
ees are customarily posted Reasonable steps shall be
taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
B If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or
dered us to post and abide by this notice
WE WILL NOT deprive any employee of his or her
right to union representation at an investigatory inter
view that the employee reasonably believes may result in
disciplinary action
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the National Labor Rela-
tions Act
STORER COMMUNICATIONS OF JEFFERSON
COUNTY, INC