Texaco, Inc.

National Labor Relations Board - Board Decisions

Dec 8, 1969

179 N.L.R.B. 976 (N.L.R.B. 1969)

976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Texaco, Inc., Los Angeles Sales Terminal and
General Truck Drivers, Chauffeurs & Helpers,
Local 692 , International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and
Helpers of America . Case 21-CA-7745
December 8, 1969
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On January 14, 1969, Trial Examiner Maurice M.
Miller issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in certain alleged unfair labor practices and
recommending that the complaint herein be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Decision and a
supporting brief, the Respondent filed
cross-exceptions to the Decision and a brief in
support thereof and in opposition to the General
Counsel's exceptions, and the General Counsel filed
a brief in answer to the Respondent's
cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the
cross-exceptions, the briefs, and the entire record in
this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner.'
caused a complaint and notice of hearing to be issued and
served upon Texaco, Inc., first designated as Respondent
therein.
(Subsequently, during the hearing held in this matter,
Respondent's designation within the case caption was
consensually changed to Texaco, Inc., Los Angeles Sales
Terminal. This was done to permit a differentiation in
citation, between this case and a prior case, Texaco Inc.,
Houston Producing Division. 168 NLRB No. 49, which
had presented similar questions.)
The complaint was issued December 28, 1967, therein
Respondent was charged with unfair labor practices
affecting commerce within the meaning of Section 8(a)(1)
and (5) of the National Labor Relations Act, as amended,
61 Stat. 136, 73 Stat. 519. Within Respondent's answer,
duly filed, certain factual matters set forth within the
Complaint were conceded, Respondent, however, has
denied the commission of any unfair labor practice.
Pursuant to notice, a hearing with respect to the issues
was held at Los Angeles, California, on May 7 and 8,
1968, before me. The General Counsel, complainant
union, and Respondent were represented by counsel. Each
party was afforded a full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce
evidence pertinent to the issues.
(The transcript, herein, reflects several errors
conceivably meriting correction. Most, however, may be
considered minor; there is only one which significantly
affects the record. P. 225, 1. 10, should be revised to show
that the remarks commencing there were made by the
witness, not the Trial Examiner.)
Before the hearing closed, General Counsel's
representative presented oral argument; subsequently
Respondent's counsel submitted a brief. General Counsel's
statement of position, and Respondent's brief, have been
duly considered.
FINDINGS OF FACT
Upon the entire testimonial record, documentary
evidence received, and my observation of the witnesses, I
make the following findings of fact:
1. THE BUSINESS OF RESPONDENT
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
recommended order of the Trial Examiner, and
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
'Our agreement with the Trial Examiner that the complaint should be
dismissed is based on the facts of this case , and does not signify the
Board 's approval or adoption of the Trial Examiner's general discussion of
an employee's right to union representation in other circumstances
DECISION OF THE TRIAL EXAMINER
STATEMENT OF THE CASE
MAURICE M. MILLER, Trial Examiner: Upon a charge
and amended charge, filed on September I1 and
September 26, 1967, respectively, and duly served, the
General Counsel of the National Labor Relations Board
Respondent, a Delaware corporation, maintains an
office and place of business in New York City, together
with various plants, places of business, warehouses, oil
refineries, and further facilities within the states of New
Jersey, Illinois, Texas, Oklahoma and California, among
others. The corporation is engaged in the production and
marketing of petroleum and other related products.
Respondent, annually, sells and distributes products
valued in excess of $50,000, which are shipped in
interstate commerce directly to various states of the
United States other than the State of California, likewise,
Respondent annually purchases, and causes to be delivered
to various California facilities, petroleum products valued
in excess of $50,000, which are transported directly from
states of the United States other than the State of
California to said facilities.
Upon the complaint's jurisdictional declarations, which
are conceded, I find that Respondent was, throughout the
period which this case is concerned, an employer engaged
in commerce and business activities which affect
commerce within the meaning of Section 2(6) and (7) of
the Act, as amended. With due regard for those
jurisdictional standards which the Board presently applies
-- see Siemons Mailing Service, 122 NLRB 81, and
179 NLRB No. 157
TEXACO, INC.
related cases - I find assertion of the Board's jurisdiction
in this case warranted and necessary to effectuate
statutory objectives.
II. THE LABOR ORGANIZATION INVOLVED
General Truck Drivers, Chauffeurs & Helpers, Local
692, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, designated as
Complainant Union within this decision, is a labor
organization within the meaning of Section 2(5) of the
Act, as amended, which admits certain of Respondent's
employees to membership.
III. THE UNFAIR LABOR PRACTICES
A. Issue
This case --- which derives from a substantially
undisputed factual record - presents two related
questions . ( 1) Did Respondent's management - when it
refused a worker's request for permission to have his
collective -bargaining representative present , during a
purported "fact-find ing"• conference conducted by a
company supervisor with respect to reported misconduct
by the worker concerned - violate Section 8(a)(5) and (1)
of the Act? (2) Did Respondent's management - when it
denied a concurrent request , presented by Complainant
Union's representative, for permission to attend the
purported "fact-finding" conference - further violate
these designated statutory mandates? Respondent contends
that - when its responsible supervisor refused to permit
Complainant Union's- representative to be present during
the particular worker's purported "fact-finding"
confrontation with a company supervisor -- the statute
was in no wise violated.
B. Facts
1. Background
a. Respondent 's managerial hierarchy
Respondent distributes petroleum products, nationwide,
through a Domestic Sales Department, headed by a
corporate vice president and functioning under general
directions provided by regional managers. The
headquarters departmental staff, further, includes a
Supervisor of Employee Relations with nationwide
responsibilities; throughout the period with which this case
is concerned, D. M. Martin held that post.
Respondent maintains nineteen sales divisions, each
headed by a divisional sales manager. The Company's Los
Angeles Sales Division is headed by Division Sales
Manager R. J. Fisher; Jack Sandel functions as Fisher's
assistant. The staff, further, includes a divisional
supervisor of employee relations; since August 1, 1967,
Edward A. Riddle has held that post. Within each sales
division, Respondent operates various sales terminals. The
presently designated Los Angeles Sales Terminal, located
in Wilmington, California, constitutes the particular
facility which this case is concerned.
Respondent's management team within the Los Angeles
Sales Terminal is headed by General Superintendent Carl
Walsh; Walsh's subordinates in line supervision include
Terminal Superintendent Walter Heimgartner, directly in
charge of the "entire" facility. There are two assistant
terminal superintendents ; Burt Gallagher provides direct
day-shift supervision with respect to terminal truck
operators , warehousemen and office personnel , while Guy
977
Slagenweit discharges that responsibility on Respondent's
night shift.
b Complainant Union's Representative Status
Between April 1, 1964, and April 1, 1966, Complainant
Union and Respondent had been privy to a
collective-bargaining contract which covered certain Los
Angeles Sales Terminal workers. Shortly before that
contract's termination, however, Respondent had filed a
representation petition (Case 21-RM-1230) which had,
substantially, challenged Complainant Union's continued
right to claim representative status, with respect to
workers in the contractually covered group. Their
contract, subsequently, was terminated.
Following a stipulation for certification upon consent
election finally signed on July 31, 1967, the Board's
Regional Office conducted a representation vote within a
group consensually designated as proper for
collective-bargaining purposes. The group was particularly
defined as follows
All transport truck operators, package truck operators,
and warehousemen at the Employer's Long Beach,
California, Sales Terminal, excluding all other
employees, office clerical employees, professional
employees, watchmen, guards, and supervisors as
defined in the Act.
On August 17, a majority of Respondent's workers within
the described group designated and selected Complainant
Union as their representative for collective-bargaining
purposes. Shortly thereafter, on August 25th, specifically,
Complainant Union was formally certified as their
exclusive collective-bargaining representative
Throughout this period - during August and
September, 1967, particularly Complainant Union and
Respondent had no collective-bargaining agreement.
Credible testimony proffered for the record warrants a
determination, nevertheless, that Respondent's
management, pursuant to policy, did continue to recognize
the right of company workers - within the unit covered
by Complainant Union's previously held contract - to
present and process grievances "individually or through
their representatives" with procedure defined by their
terminated agreement, short of final, tripartite, Board of
Review determination
2. The suspension of Prince
Edmond C. Prince, Respondent's worker with whom
this case is directly concerned, began his service with the
company on June 2, 1966; when the situation giving rise
to this case developed - 6 days after Complainant
Union's certification, on August 31, 1967, specifically -
he was a truckdriver at Respondent's Los Angeles Sales
Terminal, serving within the bargaining unit which
Complainant Union represented. Prince was then working
a 10-hour evening shift commencing at 5 p.m. 4 days per
workweek; these days were Sunday, Thursday, Friday,
and Saturday, specifically.
On Thursday, August 31, the truckdriver reported for
work pursuant to schedule; Respondent's day shift
dispatcher had designated him to drive a tractor and tank
trailer with a full load of gasoline. Following a routine
15-minute equipment safety check, however, Prince
prepared a formal "Truck Operator's Report of Repairs
or Service Needed on Motor Equipment" with respect to
certain mechanical deficiencies which he had noted.
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Previously , between July 5, 1967, and August 27,
Prince had submitted thirteen such forms , with respect to
purported equipment deficiencies requiring service,
adjustment or repair , on Respondent ' s motor vehicles.)
His specifications regarding the repairs or service
needed read : "( 1) Mud flap on left side of trailer bad. (2)
Rubber fender on right side of trailer is broken off. (3)
Bad tires on trailer , one flat ." The report was given a
company mechanic at Respondent 's terminal . Though it
purported to cover a tractor and trailer unit , Prince's
report requested work confined merely to the trailer
More particularly , relative to specifications ( 1) and (2)
Respondent 's truck driver claimed that his trailer's left
rear rubber mud guard had an 8 - inch vertical gash, and
that a supplementary three and one - half inch rubber side
extension , affixed to the trailer 's right rear metal fender,
had been substantially "pared away" or "broken off"
toward the rear.
Following his receipt of Prince ' s report, one of
Respondent ' s mechanics reported that he did not have the
parts to repair the mud guard flap or fender extension,
though both tires designated " bad" would be replaced.
The tires were, thereupon , changed . Notation was made
on Prince's report that a new rubber fender was on order.
The truck driver , thereupon , reported his trailer's
condition to his immediate supervisor , Assistant Terminal
Superintendent Slagenweit . More particularly , he noted
that replacement parts for the mud flap and rubber fender
edge were not available , declaring his "hope" that
Slagenweit would not , therefore , expect him to drive the
defective trailer Respondent 's assistant terminal manager,
having checked the trailer , made no reply. When the
trailer ' s tires were changed , Prince reiterated his
contention that his equipment wasn 't "ready" yet
Slagenweit disagreed - - but Prince noted , once more, that
the damaged mud guard and fender edge had not been
replaced . He declared that California's Vehicle Code
made the operation of vehicles in such condition illegal.
Slagenweit , nevertheless , directed him to drive the vehicle.
When Prince refused -- citing the possibility that the
trailer ' s presence on the highway might create hazards for
nearby vehicles and cause him trouble Respondent's
assistant terminal superintendent minimized the
significance of the reported defects; he declared that the
trailer "could be driven" that night . The truck driver
suggested his willingness to handle a different vehicle;
Slagenweit declared that no other vehicles were available.
When Prince persisted in refusing to haul the
purportedly defective trailer , Slagenweit directed him to
go home; he was told to report for a talk with Terminal
Superintendent Heimgartner at 10 a.m . the following
morning Prince was , further , told to consider himself
suspended without pay, pending his talk with
Respondent 's terminal superintendent The tractor -trailer
combination remained in Respondent 's yard, loaded, until
approximately 10:20 p.m when another truck operator
hauled the trailer to its destination , returning thereafter
without incident.
The following morning , September 1, when
Heimgartner reached Respondent 's terminal , he received
Slagenweit ' s written "memorandum letter" report relative
to Prince's suspension . Inter alia , that report characterized
Prince as being "very conscientious" with respect to
reporting defects, but "too willing to ask for on the spot
repairs" for items which would not affect truck safety.
Further , Slagenweit 's report noted that:
There will be much interest among the drivers
concerning the outcome of this suspension . Length of
suspension was this date only pending your review.
So far as the record shows, Slagenweit 's report constituted
Heimgartner 's first notice regarding the matter . Promptly,
he together with General Superintendent Walsh
presumably -- made a personal inspection of the
purportedly defective trailer which Prince had refused to
haul; his inspection confirmed the presence of physical
defects with respect to the mud flap and fender extension,
consistent with Slagenweit 's report . Thereupon,
Heimgartner directed Assistant Terminal Superintendent
Gallagher , together with Division ' s assistant motor
inspector , Carl Tietz, to take the tractor and trailer in
question to a California Highway Patrol station for
inspection
The combination was driven - shortly after 8:00
o'clock to a truck inspection station on the nearby San
Diego Freeway, where it was checked by a California
Highway Patrol officer. The latter was asked whether the
trailer's use, with a damaged left rear mud flap and right
rear fender extension , would be "illegal" and whether a
defective equipment citation would be likely. The patrol
officer repled that - should the trailer be presented for
inspection at his station while he was on duty -- he would
not issue a traffic citation against the driver, or with
respect to the trailer ' s equipment , based upon its then
current condition.
(The Motor Vehicle Code of California , Section 27600,
provides that: "No person shall operate any motor
vehicle, trailer , or semi-trailer unless equipped with
fenders, covers , or devices , including flaps or splash
aprons, or unless the body of the vehicle or attachments
thereto afford adequate protection to effectively minimize
the spray or splash of water or mud to the rear of the
vehicle." Further, Section 24002 declares "unlawful" the
operation of "any vehicle or combination of vehicles" not
equipped as the Code requires . Substantially , Gallagher
and Assistant Motor Inspector Tietz were told -- by the
particular Highway Patrol officer they consulted - that
he would not consider the trailer ' s mud flap or rubber
fender extension defective , within the meaning of these
Code provisions . The record , however, does reflect
Gallagher ' s further testimony that the patrol officer in
question declared it quite possible that "some other officer
at some other duty station" might issue a citation for
defective equipment , or a warning regarding defective
equipment, with respect to Respondent 's trailer. Gallagher
was told that, should such a citation be given , Respondent
would be given a period of fourteen days within which to
make required repairs; further he was told that no citation
would be given the driver concerned , but merely a
defective equipment warning notice.)
When Gallagher reached Respondent ' s Los Angeles
Sales Terminal with this report, Heimgartner referred him
to Slagenweit ' s memorandum , and requested that he
conduct the conference with Prince which had been
scheduled for 10 that morning , to obtain the driver's
version with respect to what had taken place the night
before, and to "verify " Slagenweit 's report. The terminal
superintendent then left for a Long Beach meeting which
he had previously been committed to attend.
3. Management 's "Fact-Finding " investigation
Shortly before his scheduled 10 o'clock conference,
Prince telephoned Respondent 's terminal; Gallagher, with
whom he spoke, was told that the driver would be unable
to report as requested , since he had no means of
transportation . Their meeting was postponed, by mutual
TEXACO, INC. 979
consent, until 2 p.m. that day.
Before 'noon, however, Prince's transportation problem
was resolved; thereupon, he 'proceeded, first, to
Complainant Union's Long Beach office. There, he
detailed his previous night's contretemps with Slagenweit
to William R. Boldt, Complainant Union's agent and
organizer.
(Boldt had held that position' with Complainant Union
since the beginning of August 1967; prior thereto, he had
been, himself, employed at Respondent's Los Angeles
Sales Terminal serving as a truck driver.)
Prince declared that he ' felt he had been unjustly
suspended; he said that he would like someone from
Complainant Union with him for his scheduled conference
at Respondent's terminal . Complainant Union's
representative - though he pointed out that their local
had no contract with Respondent currently in force -
agreed to accompany him.
Complainant Union's representative, however, then
telephoned Respondent's Assistant Division Sales
Manager, Jack Sandel. Following references to some prior
discussion - regarding a mass discharge situation which
had been resolved through arbitration - the Union
representative reported that Prince had been "unjustly"
suspended for claimed insubordination, bottomed upon his
refusal to drive a defective vehicle; Sandel was asked
whether he thought such treatment of Prince was right.
The assistant divisional sales manager's testimony
regarding his response, which I credit, reads as follows:
I told him that, well, I had not heard the facts of the
case, other than what he,had given me; that I would
have to await the report from the plant supervision; that
this was a normal circumstance , that when an employee
is insubordinate , he' would be suspended until a proper
investigation could be conducted ' and allow management
time to arrive at a decision. [Emphasis supplied.]
In response to Boldt's further questions, Sandel declared
that Prince would have to contact Heimgartner regarding
his possible return to duty, since the firm's "decision"
would "come back" through the latter. Thereafter, shortly
after noon , Prince again telephoned Gallagher; he
requested an immediate conference since his
transportation problem had been solved. When Gallagher
demurred, declaring that their conference should be held
at 2 o'clock as rescheduled, the truck driver asked whether
a Union representative could come with him.
Respondent 's assistant , terminal superintendent , however,
stated that their discussion's only purpose would be to
obtain his (Prince's) version of what had taken place; that
the matter was being investigated; and that management
merely wanted to give him a chance to present his side of
the case. Accordingly, Gallagher declared he saw no
reason why anyone else should be present. Prince,
thereupon, handed the telephone to Boldt; the latter
reported Prince's prior request for his company, declaring
that he merely wanted to "come in and sit in" during the
meeting with "no intention of interfering " therein.
Gallagher, however, reaffirmed his prior statement that
Respondent 's management merely wanted Prince 's version
regarding what had occurred, and that there was,
therefore, no reason - why the truck driver should be
accompanied by Complainant Union's representative.
While their conversation was in progress, Heimgartner
returned; Gallagher ' reported Boldt's request.
Heimgartner, likewise, declared that he saw no reason for
Boldt to come with Prince, since he (Heimgartner) was
merely investigating the situation and wanted to get
Prince's version and "confirmation" with respect to
Slagenweit's report. Boldt was advised with respect to
Heimgartner's position.
Some 15-20 minutes thereafter - so I find - Prince
reached Respondent's terminal; despite their prior 2
o'clock consensus, he met with both Heimgartner and
Gallagher promptly. Respondent's terminal superintendent
began their discussion. Holding a document which he
described as Slagenweit's report, he declared that he
would "investigate" that report thoroughly. He noted,
then, that Slagenweit had reported Prince's suspension
because of his refusal to drive certain designated
equipment the previous evening; the driver was then
invited to give his version. He confirmed his refusal,
declaring that he had refused to drive the tractor-trailer
combination noted because it had appeared to him that
"the truck was unsafe" within the Vehicle Code's
meaning, so that its highway operation would not be legal;
further, he mentioned that Respondent's guidebook for
drivers said "something" about taking out trucks
considered unsafe. The driver described some accident
hazards which the defective trailer's operation might
entail. Heimgartner, so his credible testimony shows, then
asked whether Prince had had any further reason for his
refusal The driver replied negatively. Respondent's
terminal superintendent then noted, inter alia, that
Prince's comment regarding the trailer's purportedly
"unsafe" character represented his personal opinion
merely. The driver was told that his suspension, then
current, would continue pending further investigation and
that he would be informed when management's
investigation was concluded and a final decision reached.
Later that afternoon - following a conference with
General Superintendent Walsh to be noted -
Heimgartner made arrangements for photographs of the
purportedly defective trailer to be taken; these
photographs, subsequently taken for Respondent's file,
have been made part of the present record.
4. The discharge of Prince
Shortly following his meeting with Prince, Heimgartner
reported the day's developments - with respect to
Prince's suspension - to General Superintendent Walsh.
The latter was told of Prince's confirmation regarding his
refusal to drive the tractor-trailer combination; further,
Heimgartner reported the California Highway Patrol
officer's reaction, which had been relayed by Gallagher
previously. When proffered as Respondent's witness,
Respondent's terminal superintendent first testified that -
during their conversation - no "decision" regarding
Prince's situation was reached. However, General
Superintendent Walsh's subsequent testimony regarding
his conversation with Heimgartner, which I credit,
concluded as follows.
Well, after all the discussions were concluded before we
left, Mr. Heimgartner and I discussed what disposition
should be made in Mr. Prince's case, and Mr.
Heimgartner stated that in his opinion Mr. Prince had
refused to perform a duty ordered by a supervisor, and
he was subject to discipline up to and including
discharge, and I agreed with him.
Consistently, Heimgartner's testimony in
cross-examination reflects his concession - finally - that
he had proffered his "opinion" or "recommendation" that
Prince's conduct constituted insubordination which
merited discipline, including discharge. Respondent's
general superintendent declared that the situation relative
to Prince's possible discipline would be "taken up" with
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Assistant Divisional Sales Manager Sandel, and that
Heimgartner would be advised regarding whatever
decision was reached.
On the morning of the following business day, Tuesday,
September 5, Walsh visited Sandel at Respondent's Los
Angeles divisional headquarters ; Respondent ' s assistant
divisional sales manager was told , inter alia, that
Heimgartner and he (Walsh) were agreed that Prince
merited discharge.
When Sandel asked Walsh whether Respondent had
sufficient grounds for discharge, in Prince's case, the latter
replied that he "did feel" the truck driver's outright
refusal to comply with a supervisor's direction constituted
a sufficient ground for dismissal.
(Sande) had, during their conversation, requested the
facts, Walsh, so his testimony shows, had recapitulated
them )
Respondent ' s assistant divisional sales manager,
thereupon, declared his concurrence. Shortly thereafter,
however, while Walsh was still present -- during a
transcontinental telephone conversation with Supervisor of
Employee Relations Martin in Respondent's Domestic
Sales Department headquarters - the assistant divisional
sales manager detailed "the Prince case" for Martin's
information, together with Walsh's recommendation.
Following their conversation, so Walsh testified:
Mr Sandel advised me Mr. Martin was in agreement
that Mr. Prince should be discharged, and he directed
that I have the matter carried to a conclusion.
While a witness, Sandel substantially corroborated this
testimony. His telephone call to Supervisor of Employee
Relations Martin had been previously placed primarily so
that they could discuss a completely different matter,
Sandel testified, however, that he "took advantage of the
opportunity" thus presented to discuss Prince's case with
Martin , though not required to do so, since he considered
the latter knowledgeable in labor relations matters. When
queried specifically, Sandel declared that Prince was
thereafter discharged pursuant to his decision
Early that Tuesday afternoon, General Superintendent
Walsh returned to Respondent's terminal where
Heimgartner was told of Sandel's directive. Respondent's
terminal superintendent and Walsh then discussed the
steps required to effectuate Prince's termination They
decided that Prince would be notified with respect to his
dismissal on Thursday, September 7th, and that he would
be paid through that date.
(Their recitals which I credit in this connection --
reflect two reasons for their decision The California
Labor Code provides that wages earned but not yet paid,
when a worker is discharged, are considered
"immediately" due and payable Walsh and Heimgartner
testified that they believed Prince's final paycheck would,
therefore, have to be ready for delivery, promptly,
following his discharge. However, Respondent's company
mail carrier service, which would bring Prince's check
from Respondent's Los Angeles Division Payroll
Department for presentation, could not be expected to
reach the firm's Los Angeles Sales Terminal before 6 p.m.
the following day, well into Respondent's second shift.
Further, September 7 would be, in any event, the start of
Prince's next scheduled work shift.)
Following his September 5 consultation with Walsh,
Heimgartner completed a standard company form
designated "Recommendation for Employment and
Changes Affecting Employees" directed to R J. Fisher,
Respondent's Los Angeles division sales manager, therein
he "recommended" that Prince be discharged for
insubordination, since he had "refused to operate truck
assigned" pursuant to his supervisor's direction.
(During cross-examination , Heimgartner conceded that
his firm's decision to discharge Prince had previously been
made; further, he conceded that the form now under
consideration though it did, technically, call for the
Division Manager ' s subsequent concurrence was
prepared pursuant to routine for the Division 's personnel
records.)
Concurrently, Heimgartner completed a payroll
department form, required by Respondent's procedure,
designating the hours for which Prince should be paid.
(Both forms were subsequently consigned to Respondent's
company mail carrier service for appropriate delivery.) He
then telephoned Respondent's Los Angeles payroll office;
he directed one of Respondent's payroll clerks, Vernon
Mabry, to prepare, manually, Prince's final check. This
was done. Subsequently, Prince's check was delivered in
due course to Respondent's mail carrier; it reached the
firm's Los Angeles Sales Terminal on September 6, at
approximately 6 o'clock
During the morning of September 7, Respondent's
terminal superintendent personally telephoned Prince, the
latter was requested to report directly to Heimgartner's
office at 5:30 p.m. that day, when he would normally
report for work.
(Prince, while a witness, testified - mistakenly I find
that General Superintendent Walsh had called him.
Heimgartner, however , volunteered -- during his
testimony subsequently - that when he telephoned, he
had identified himself with his first name, Walt, rather
than with his last name; this, within my view, probably
explains Prince's mistaken conclusion.)
When he appeared, pursuant to Heimgartner's request,
the latter with Walsh present - told him that,
following their investigation, Respondent had reached a
decision to discharge him for insubordination, bottomed
upon his refusal to obey a supervisor's order Prince was
paid so the record seems to show -- through
September 7, his check covered the shift which he would
have started to work that day, but for his discharge.
5. Complainant Union's grievance
Meanwhile within a letter dated September 6,
directed to Terminal Superintendent Heimgartner, which
the latter received during the morning of September 7
prior to Prince's discharge - the Complainant Union had
lodged a grievance with respect thereto. The letter
which Bill Boldt had signed - read as follows.
This is to notify you of the filing of a grievance by
Teamsters Local 692 in behalf of Transport Operator
Ed Prince on two counts: 1st - because of the unjust
suspension on or about August 31, 1967 and 2nd --
because of your refusal to allow him to be represented
by a union agent at a conference held in your office on
or about September 1, 1967 to discuss said suspension
With a letter dated September 15, Heimgartner replied.
Boldt was told that Complainant Union's grievance was
denied for lack of merit, but that should he wish,
Respondent would be willing to discuss the matter further.
Thereafter, pursuant to Boldt's request, the parties set a
September 20 conference at Heimgartner's office. Boldt,
Prince, and Jim Reynolds, Complainant Union's yard
steward at Respondent's terminal, were present. Walsh,
Heimgartner and Edward Riddle, Respondent's divisional
supervisor of employee relations, were management's
spokesmen; Dave Jacobson, senior clerk at Respondent's
TEXACO, INC. 981
terminal , took notes.
(The testimony proffered with respect to this conference
reflects little or no disagreement in matters of substance.
Several witnesses , however , revealed variant or deficient
recollections regarding the chronological sequence of
particular devlopments. My summary, which follows,
represents a substantially complete recapitulation, based
upon testimonial syntheses which - within my view -
comport with logical probability.)
Substantially , Boldt restated Prince's grievance ; Riddle
recapitulated Respondent's position that the driver's
grievance lacked merit . Complainant Union's
representative conceded that the driver ' s suspension
without pay no longer presented a viable question, since
Respondent had paid him in full for whatever work time
he had lost through suspension, prior to his discharge.
Regarding Prince ' s representation directly following his
suspension , however , Boldt contended that Respondent's
management and Complainant Union's spokesmen should
have handled matters together ; when Heimgartner
declared that "the company [had not been] contemplating
any action" disadvantageous to Prince when he was
summoned for their September 1st conference,
Complainant Union 's representative countered that Prince
had previously been suspended, that he was later
discharged, and that Respondent , therefore , must have
been "contemplating " disciplinary action with respect to
him. Respondent ' s management representatives (Walsh
and Heimgartner) stated their disagreement ; Riddle's
corroborative testimony in this respect, which I credit,
reads as follows:
I believe it was Carl [Walsh] that said we did not have
to have a Union representative present when we were
counseling with our people ; that if they wanted a Union
representative present and asked for it at the time we
were to take action , that possibly it would be all right,
but if they asked for it, we would give it. [Emphasis
supplied]
Subsequently , Riddle explained his testimonial reference
to counseling ; his witness-chair recital meant , so I find,
that Boldt was told , whether in words or substance, that,
"When you investigate and talk to the man and get his
side of the story," management did not feel it necessary to
have Union men present.
During their , discussion , so the record shows,
Complainant Union ' s representative - directing his
remarks to Prince ' s final discharge - mentioned the
latter ' s refusal to drive Respondent 's tractor-trailer
combination ; he noted Complainant Union's position that,
under California's Motor Vehicle Code provisions, the
trailer which Prince had been directed to haul would not
have met legal standards . Heimgartner replied that the
trailer had been "Checked" within Respondent ' s garage;
that it had subsequently been checked through a
California Highway Patrol station; that there had been
nothing "much" wrong with its condition ; and that no
danger would have been presented had Prince hauled it
pursuant to Slagenweit ' s August 31 directive . Following a
brief recess -- during which Boldt was permitted to see
the purportedly defective trailer , with respect to which the
defective rubber mud flap had been replaced - the
Complainant - Union ' s representative suggested or
requested Prince's reinstatement. Walsh , however , replied
that the driver had been discharged because Respondent's
management "could not tolerate" insubordination; under
the circumstances , Boldt was told Respondent would not
reinstate him.
(While a witness, Complainant Union's representative
ascribed this remark to Heimgartner; the latter, likewise,
recalled a reference to Prince's discharge for
insubordination. With due regard for this record, however,
the likelihood that Walsh made the particular comment
noted seems greater; I have so found.)
Boldt countered with a comment that no management
representative had mentioned "insubordination" when
Prince was first suspended, nor was his conduct so
characterized during Heimgartner's September 1st
conference. Complainant Union's representative then
renewed his contention that some union representative
should have been present during Prince's September 1
interview. Riddle and Walsh, however, merely reiterated
Respondent's position that no Union presence could
properly have been considered necessary, since
management, then, had merely wanted "to get his
[Prince's] side of the story" for investigative purposes.
On November 3, Boldt wrote Heimgartner that
Complainant Union was grieved with respect to Prince's
so-called unjust and unlawful discharge. Within a reply
dated November 15, Heimgartner denied the grievance
He declared, however, that - should Boldt still consider
the grievance meritorious and desire to discuss the matter
- management representatives would be willing to meet
with him for that purpose. Complainant Union's
representative, however, made no further effort to process
Prince's complaint, thereafter, pursuant to grievance
procedures defined within Complainant Union's previously
terminated contract. The defective rubber fender on
Prince's trailer was finally replaced on November 29.
6. Subsequent developments
Complainant Union's original charge herein, previously
noted, contained allegations that Respondent had refused
to bargain, discharged Prince discriminatorily because of
his union activity, and generally had interfered with,
restrained and coerced terminal workers. On December
15, 1967, the Board's Regional Director partially
dismissed Complainant Union's charge; more particularly,
he dismissed - for lack of sufficient evidence - that
portion which pertained to Prince's purportedly
discriminatory termination. Following Complainant
Union's January 4, 1968, appeal, with respect to this
partial dismissal, the General Counsel, through Irving M.
Herman, his Office of Appeals director, rejected
Complainant Union's contention. Complainant Union was
advised that no sufficient basis could be found for a
determination that Prince's discharge constituted a
Section 8(a)(3) violation.
C. Discussion
1. The issue restated
The statute, generally, requires employers to deal with
their workers' chosen representative with respect to
matters affecting wages, hours, and working conditions.
More particularly, collective bargaining when required
pursuant to statute - has further been held to compass
discharge or discipline situations, since such matters do,
manifestly, relate to working terms and conditions.
National Licorice Company v. N.L.R.B., 309 U.S. 350,
360. Thus, when management "deals" directly with
represented workers, concerning their working terms and
conditions more particularly, their probable subjection
to discharge or disciplinary treatment - company
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spokesman may, under certain circumstances, be required
to grant their requests for union representation.
However, this statutory requirement - whenever some
determination must be made regarding its purported
relevance within a factual context concerned with a
worker's possible or potential liability to discipline -
presents a threshhold question: Precisely when, absent
some specific contractual provision, does that worker's
statutory right to be represented by his recognized or
certified bargaining agent - with which may be coupled
that agent 's right to function as his representative -
develop, vest or materialize? Or more particularly
should the statute be presently construed to require that
workers, within a represented plant, must be granted,
pursuant to request, rights to seek and procure help from
their recognized bargaining representative, whenever
management proposes to require their presence during a
purported "investigative interrogation" which looks
toward their possible discipline or discharge? These
questions have, thus far, received limited decisional
treatment.
Statutory representation rights within such a context --
so General Counsel presently contends - materialize or
vest whenever the employer-employee relationship has
reached a point with respect to which some management
decision or conduct - likely to affect the worker's job
tenure or working conditions - has become reasonably
probable, not merely possible. Texaco, Inc., Houston
Producing Division, 168 NLRB No. 49. More
particularly, General Counsel suggests that - within a
probable disciplinary situation statutory representation
rights materialize, pursuant to request: (1) Whenever,
during management's preliminary consideration, the
particular worker or workers concerned have "come into
the focus of prospective discipline" with good reason to
fear their subsequent subjection thereto; or (2) Whenever
management has commenced proceedings - formal or
casual - which would clearly "conclude a case" and
"build a record" calculated to support a disciplinary
decision previously reached. Within the Board's brief,
directed to the Court of Appeals for the Fifth Circuit in
connection with Respondent's petition to review Texaco
Inc., Houston Producing Division, supra, such proceedings
are characterized as pregrievance disciplinary situations.
For present purposes, General Counsel would contend,
merely, that, under such circumstances, the worker's
statutory right to representation vests solely pursuant to
request, rather than by force of law without a request. We
need not, therefore, determine herein whether the
statute requires management to give a worker's recognized
or certified representative both notice and opportunity for
hearing, before some disciplinary decision is reached or
disciplinary action taken.
This Board has, however, recognized that
collective-bargaining representatives need not be made
privy to management's councils. Determinations have been
made that represented workers cannot claim a statutory
right to procure their collective-bargaining spokesman's
presence or help, shielding them from company questions,
whenever management has commenced a mere
"fact-finding" investigation to determine whether plant
discipline has been breached. Chevron Oil Company, 168
NLRB No. 84; Jacobe-Pearson Ford, Inc., 172 NLRB
No. 84. General Counsel would, herein, distinguish these
cases. He contends that - when Prince was summoned to
confer with Respondent's terminal superintendent he
was not merely solicited to proffer his version of the
reported contretemps with his supervisor; substantially,
General Counsel suggests that Respondent's management
was, then, realistically committed to Prince's discipline.
Within their brief, however, Respondent's counsel
counters that - when Prince was directed to see
Respondent's terminal superintendent - their conference
constituted merely:
an investigatory meeting in which an employee
[Prince] [was] afforded an opportunity to present his
side of the story with respect to alleged misconduct by
him....
With matters in this preliminary "fact-finding" posture, so
Respondent contends, management's denial of Prince's
request for union representation cannot legitimately be
considered a deprivation of statutory rights. Factually,
counsels' brief declares, this Board's last-noted decisions
(Chevron Oil and Jacobe-Pearson Ford) should be
considered completely dispositive for present purposes.
2. Review
The decisional principles proffered as determinative
with respect to this matter - when dispassionately
considered raise many questions The
labor-management relations problem which this case
presents cannot be properly resolved - within my view
through a determination , merely, that Texaco, Inc.,
Houston Producing Division, on the one hand, or
Jacobe-Pearson Ford, Inc., on the other, must be
considered controlling precedents . Such a simplistic
decision , buttressed with nothing more than facile
rationalization, would provide no guidance for future
cases. This trier of fact, therefore , finds himself -
preliminarily - constrained to review General Counsel's
proposed rule of decision , herein.
First. This Board 's relevant decisions, read in sequence,
suggest a basic premise that when "plant discipline"
situations develop - confrontations between the
concerned worker or workers and management
representatives will be either fact - finding conferences, or
record - building proceedings calculated merely to justify a
disciplinary decision with respect to which management
stands committed . Realistically , however , that premise -
within my view - creates a false dichotomy. When
workers are summoned for conferences by a supervisor,
management ' s purpose - at least at the outset - may
well be quite different . For example : the worker may have
been summoned merely to discuss some job-related
procedure , problem or difficulty with respect to which his
cooperation is sought . He may have been called to receive
supervisory exhortation, job instruction or training
directives which lower - level supervisors may have
considered necessary ; he may have been summoned for
some verbal admonition or reprimand with respect to
conduct considered detrimental to production or plant
order . Such confrontations can hardly be considered
"fact- finding" meetings; neither, however, can they be
considered disciplinary proceedings, within common
parlance. Nevertheless, such conferences - clearly -
may concern matters which significantly "affect" the
worker ' s conditions of employment. Cf Robertshaw
Controls Co v. N L.R.B , 386 F.2d 377, 385-386. Thus,
the Board's present rule of decision - since it
presumptively would require the categorization of
worker-supervisor conferences as either purely
"investigatory" conferences or "disciplinary" proceedings
reflects seeming disregard for the multifarious facets of
industrial life.
TEXACO, INC. 983
Second : The decisional doctrine now in question -
when proffered as dispositive with respect to cases which
clearly involve some worker 's liability to discipline -
would seemingly require a fragmented review of
management ' s conduct , which can hardly be considered
realistic . Problems of plant discipline , normally, require
resolution through a three-step process : (1) The relevant
'facts" must be found ; (2) management must then decide
whether these "facts" reflect a disturbance of business
goals or plant order sufficiently serious to warrant some
disciplinary reaction ; (3) some decision must be reached
regarding the degree of discipline which the situation
requires . Substantially , therefore , management must
pursue a conventional judgmental process.
(Similarly, this Board ' s decisional process requires
determinations as to what relevant and material facts have
been proven , whether such proven facts constitute a
violation of law , and what remedy may properly be
required to redress the violations found.)
In many cases - possibly even in this case , despite a
seeming record showing to the contrary - the power to
make these three required determinations may be vested
in some single management representative ; further, such
determinations may be made during a single meeting or
conference with the worker or workers concerned . In such
cases, this Board ' s decisional rule - since it would
seemingly require a trifurcate division of management's
disciplinary function , denying concerned workers any right
to representation during the first step , but confirming their
statutory representation rights during the second and third
steps - may require case-by-case decisions bottomed
upon a conceptual scheme not normally comprehended or
followed in management practice.
Third : The relevant Board decisions , noted , provide
little guidance with respect to certain collateral, but
significant questions . For example : Who shall determine
- within the context of a presumptive disciplinary
situation - that the concerned worker ' s right to
representation , coupled with his recognized
representative ' s right to function , has really arisen or
matured? Specifically , who shall determine , prospectively,
whether a scheduled conference , for which the worker has
been summoned , was scheduled for purely "fact-finding"
purposes, or whether a firm ' s responsible management
stands precommitted to some sort of disciplinary
response? Further , precisely how shall such determinations
- regarding a conference 's purpose - be reached? Let us
consider these questions.
Assuming , arguendo , that a concerned worker's
personal view , or that of his collective bargaining
representative - with respect to a scheduled conference's
purpose - may be persuasive or determinative, does the
statutory right with which we are presently concerned
accrue merely because the worker claims or professes a
subjective "feeling" that his representative's presence
would be necessary or desirable? Should a worker 's inner
fear that the "cards are stacked " with respect to
prospective discipline - whether or not he manifests such
fears contemporaneously - dictate or require
management 's concurrence with his consequent request for
Union help? These last questions , presumably , call for
negative responses . Cf. N.L.R.B. v. Ross Gear & Tool
Company, 158 F.2d 607 , 613. My colleague, Trial
Examiner Christensen , has suggested that a worker 's right
to representation does not arise , regardless of his request,
when the record shows that - at the time he made his
request - he did not know , but merely suspected, that
management was summoning him to conduct a
disciplinary interview Southwestern Pipe Inc.,
23-CA-2465 (TXD). On the other hand - assuming,
arguendo, that management's view regarding a scheduled
conference's purpose may be persuasive or determinative,
should a bargaining representative's right to be present
during scheduled "pre-grievance" conferences be
dependent merely upon management's subjectively held
or baldly professed position relative to whether or not its
corporate "mind" has been "made up" regarding possible
discipline? Suggestions may be found within the
decided cases that management' s unilateral
declarations regarding the purpose behind a conference
call may possess some probative weight; the question of
their persuasive power, however, cannot be considered
settled.
The Board's recent cases suggest that claimed statutory
rights, like those with which we are here concerned, vest
or materialize when management's course of conduct with
respect to some job or plant situation provides objective
manifestations sufficient reasonably to justify the
conclusion that a disciplinary reaction, regarding the
concerned worker or workers, will be forthcoming. Such a
test, however, necessarily presupposes the ultimate
participation of some disinterested arbiter, qualified to
determine whether some particular factual situation
reasonably warranted a conclusion that timely requests for
the bargaining representative's presence during a
worker-management conference, should have been
granted. And, since we deal, herein, with a statutory
question - namely, the scope of the employer's
bargaining duty in the absence of some
collective-bargaining contract - this Board must,
necessarily, fill the designated arbitral role. Substantially,
this means that - when confronted with a factual
situation like that revealed within the present record -
the various parties must be free to take whatever positions
they deem proper regarding the bargaining representative's
claimed right to be present and participate during
worker-management conferences. Then, should the
bargaining representative's claimed right be denied,
management 's position may be subject to subsequent, post
facto, review in Board proceedings, with a consequent
possibility that - should Respondent's management be
found mistaken, retrospectively, regarding the propriety of
its course - disciplinary action previously taken may be
reversed , and status quo ante conditions restored.
A rule of law which requires respondent employers to
grant or deny requests profferred by workers or their
bargaining representatives, with their decisions bottomed
upon "guesswork" regarding the view which this Board
may subsequently take concerning their state of mind, can
hardly be considered a reliable guideline for conduct.
Fourth • The decided cases do not - yet - define the
degree of prospective discipline which, when contemplated
by management, generates the statutory right with which
this case is concerned. Presumably, workers summoned
for mere discussions regarding their job performance or
plant problems will not have been considered candidates
for potential discipline. Similarly, workers summoned for
supervisory exhortation, job instructions or directives for
future conduct can hardly be considered as receiving
disciplinary treatment. Should management's purpose to
proffer some verbal admonition or reprimand be
considered disciplinary in character, however, sufficient to
require a recognition of the concerned worker's right to
Union support when requested? With respect to this
question's resolution, we have no clue.
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Possibly, workers summoned for formal warnings,
whether written or verbal, may be considered privileged to
claim the statutory right for which General Counsel
presently contends. Such warnings, frequently, may
adversely "affect" future chances for merit raises or
promotion; likewise, they may magnify a worker's
vulnerability to subsequent layoff or discharge. Clearly -
under the cases - when management can be found
committed to disciplinary action compassing such "real"
modifications of job tenure as transfer, punitive
suspension without pay, or discharge, the statutory right
with which we are now concerned would be recognized.
What reciprocal rights and duties should this Board
declare, however, if the record reveals management's prior
tentative commitment to some nondisciplinary response -
when confronted with a given plant situation -
subsequently modified to discipline during a scheduled
conference with the worker or workers concerned?
(One management consultant has suggested that, when
this occurs during a so-called preliminary "fact-finding"
meeting, management might be well advised to reverse
any prior decision that the worker concerned was not
entitled to union representation. Robert A. Levitt,
"Practical Problems in the Handling of Grievances and
Labor Arbitrations" [excerpts] 69 LRR 312,315.)
This Board's present rule of decision - which merely
recognizes "investigatory" meetings, on the one hand, and
"disciplinary" hearings, on the other hand, without
defining these categories - permits no confident
determination regarding the rights of workers confronted
with management conduct which cannot readily be thus
classified.
Fifth: This Board's previously prescribed remedy -
which General Counsel herein requests - can hardly be
considered tailored to present decisional doctrine. The
Texaco Inc. Houston Producing Division order prohibits
Respondent from refusing to honor a worker's request for
representation by his legal bargaining representative:
. at any meeting convened by the Employer in which
the employee is questioned about, or required to defend
himself against, his own alleged misconduct in the
course of his duties or occurring on, or in relation to,
the Respondent's property. [Emphasis supplied.]
Within its brief to the Court of Appeals for the Fifth
Circuit, the Board describes this order as properly tailored
to the particular statutory violation found. However, the
quoted language - should it be deemed dispositive
without further limitation or qualification in variant
factual situations - would seem to proscribe purely
fact-finding questions, just as much as it would proscribe
accusatory questions calculated to force a confession,
conclude a case, or build a record. Similarly, the Board's
requirement that Respondent refrain from refusing to
honor a worker's request for Union representation when
"required to defend himself" would normally seem to
compass meetings called for the purpose of procuring his
"version" with respect to relevant prior developments.
These considerations, within my view, raise several
serious questions. First, does this Board's decisional
doctrine - as set forth within the three cases previously
noted - provide sufficiently realistic and precise standards
for the present matter's disposition? Secondly does the
present record constitute "elucidating litigation" sufficient
to support recommendations regarding the possible
refinement, modification or qualification of present
decisional standards? Finally, does the Board' s decisional
"essay" within the decided cases - presumably calculated
to set a statutory standard for worker-union-management
relationships in plant discipline situations - comport with
or promote statutory objectives? These are questions,
primarily, for Board resolution. Since their preliminary
consideration, however, seems requisite for this matter's
proper disposition, my views, regarding some of them,
should be stated.
The statute, inter alia , declares its purpose and policy,
"to prescribe the legitimate rights of both employees and
employers in their relations affecting commerce" and "to
provide orderly and peaceful procedures for preventing the
interference by either with the legitimate rights of the
other" through encouraging the practice and procedure of
collective bargaining. Labor Management Relations Act,
1947, as Amended, Section 1(b); Title I, Section 1. The
statute, however, defines such favored "collective
bargaining " rather broadly, with respect to both matters
of procedure and matters of substance. Employers and
bargaining representatives are directed, merely, to "confer
in good faith" with respect to wages, hours, "other terms
and conditions of employment," the negotiation of
contracts, and questions "arising" thereunder. The statute
neither prescribes those procedures which will satisfy the
duty to confer in good faith; nor does it define the
occasions when the duty arises.
The Supreme Court, when required to determine
whether parties may be required to bargain regarding
certain "substantive" matters, once described the
collective-bargaining process as: -
. . . generally considered to absorb and give statutory
approval to the philosophy of bargaining as worked out
in the labor movement in the United States. [Emphasis
supplied.]
The quotation comes from Mr. Justice Jackson, speaking
for the Court. Order of Railroad Telegraphers v. Railway
Express Agency, 321 U.S. 342, 346; cf. H. J. Heinz
Company v. N.L.R.B., 311 U.S. 514, 523-526. The latter
citation, clearly, suggests that the "collective bargaining"
mandated by the National Labor Relations Act, as
amended, may be similarly described.
Thus - generally speaking - practical industrial
experience within the field of labor-management relations
may sometimes be relevant and useful in determining the
proper scope of the statutory duty to bargain, both with
respect to matters of procedure and matters of substance.
See N. L.R. B. v. American National Insurance Company,
343 U.S. 395, 408. More recently, however, Mr. Justice
Stewart has noted that:
. data showing that many labor contracts refer to
[particularly designated matters] or that . . . grievances
[regarding such matters] are frequently referred to
arbitrators under collective-bargaining agreements,
while not wholly irrelevant, do not have much real
bearing, for such data may indicate no more than that
the parties have often considered it mutually
advantageous to bargain over these issues on a
permissive basis....
Thus, the ultimate question - so Justice Stewart declares
- will still be the scope of the duty to bargain as defined
by the statutory language . Fibreboard Paper Products
Corporation v. N.L.R.B. (Concurring Opinion) 379 U.S.
203, 217-226. That language - so Justice Stewart notes
- clearly reflects a Congressional limiting purpose.
(With these several considerations in mind, some
further reference to this Board's Fifth Circuit brief -
previously noted - seems warranted. Therein, the
so-called "investigatory hearing" preceding the final
imposition of discipline is described as commonplace in
TEXACO, INC. 985
present-day industrial relations. The Board further
characterizes "union representation of the employee
involved" as an essential ingredient of such procedures.
Phelps, Discipline And Discharge In The Unionized Firm,
(University of California, 1966) pp. 23-25, 29-31, 141;
Lapp, How to Hatldle Labor Grievances, (National
Foreman's Institute, - Inc., 1945) pp. 46-54. Both texts,
however, discuss • particular labor-management
relationships in which the concerned worker's right to
union representation has been formally recognized by
contract; further, both texts cite contractual situations
wherein the worker's right to representation must be
recognized with respect to proceedings which follow some
formal notice from management , regarding proposed
discipline or discharge. See Lapp, ibid., pp. 47, 48-49, 278,
280, 295-298, in this connection. Such post-notice
consensual procedures can hardly be considered relevant
precedents with respect to statutory requirements in
situations where no notice of management's disposition or
purpose has been given.)
Thus, while the parties privy to collective bargaining
may permissively negotiate with respect to many matters
- such as, for example, the propriety of proposed
disciplinary action (calculated to deal with particular job
situations) or their respective participatory roles in
pregrievance disciplinary procedures - their
self-determined consensus , with respect to such matters,
will not necessarily determine the statute's thrust, relative
to the bargaining representative's status in such situations.
Compare Butler v. Thompson, 192 F.2d 831, 2168 (C.A.
8); Broady v. Illinois Central Railroad Company, 191
F.2d 73 (C.A. 7); Brooks v. Chicago, Rock Island and
Pacific Railroad, 177 F.2d 385, 391 (C.A. 8); Roberts v.
Thompson, 101 F.Supp. 775 (D.C., E. Ark), dealing with
comparable problems under the Railway Labor Act, in
this connection.
When defining the scope of statutory "collective
bargaining" within this sphere - as in so many others -
this Board must, then, balance the statutory "rights"
prescribed for workmen against the otherwise broad scope
of management "prerogative" so-called. Such a balancing
process, necessarily, calls for responsible discretion. And
- particularly with regard to the rule of decision with
which this case is concerned - certain questions, directed
to Board discretion, suggest themselves . Will the statute's
purpose be well .served through a rule which merely
distinguishes broadly between "fact-finding" proceedings
and so-called "disciplinary" confrontations? Would
statutory objectives be better served, perhaps, through
some Board restraint when dealing with the veritable
procedural and substantive "thicket" which such a rule of
decision could, conceivably, generate? And should the
Board - therefore - decide to refrain from efforts to
define precisely when statutory "rights" may be claimed
in potential plant discipline situations? Or - to state the
matter differently - should collective-bargaining
representatives and employers .be left free to determine,
empirically, for themselves - through particularized
grievance settlements or negotiated contract provisions -
their respective roles in so-called "pre-grievance"
disciplinary matters? See M. S. Ryder, "Some Concepts
Concerning Grievance Procedure," Vol. 7, Labor Law
Journal, January 1956, p. 15; Monthly Labor Review,
"Grievance Procedures Under Collective Bargaining,"
August 1946, p. 175. Compare: Sydney Lens, "Meaning
of the Grievance ' Procedure," Harvard Business Review,
November 1948, p. 713; Factory Management and
Maintenance, "Making Discipline Stick - With Union
Backing ," April 1956, pp. 92-93; Jones, "The Supervisor
and the Disciplinary Process in a Unionized Setting,"
Personnel Administration, January-February 1963, p. 42,
plus various references therein cited. See, likewise, Davis,
"Steps Toward a More Flexible Disciplinary Policy,"
Personnel, May-June 1961, p. 52, in this connection.
Certainly, some cogent arguments can be made that
Board-formulated standards, declaring the respective
statutory "rights" which workers and collective-bargaining
representatives may properly claim in potential
disciplinary matters - defined and refined through a
decisional process - may generally promote the
development of rigid (legalistic) techniques, rather than
flexible (corrective) techniques, for resolving such plant
situations. See Chandler, Management Rights and Union
Interests, McGraw-Hill, Inc., New York, 1964, Chapter 1,
pp. 3, 6, pp. 307-311; Blake, Shepard and Mouton,
Managing Intergroup Conflict in Industry, Gulf
Publishing Company, Houston, 1964; Jones, Personnel
Administration, supra, pp. 45-46. And many students of
labor-management relations suggest that stable, productive
relations will be better maintained when parties privy
thereto switch "from the win-lose trap to
problem-solving" with respect to their potential conflicts.
For example, Margaret Chandler, op cit, (when setting
forth her conclusions regarding a different, but
comparable, problem) puts the matter thus:
Management rights issues of this type ... are not grand
causes, but rather just another aspect of organizational
life - symptomatic of problems that can be
ameliorated not through legalistic affirmations or
denial , but rather through means such as structural
adjustments that will eliminate their underlying cause.
[Emphasis supplied.]
Thus - arguably - governmental strictures calculated to
define comparative "rights" may - when put into
practice - tend to promote labor-management policies
and procedures geared to confrontation rather than
cooperation. Should this Board consciously promote such
a conceivable development?
Further, Board decisional restraint - within this field
- may well be more consistent with Congressional
purpose than significantly "activist" promulgations. The
Labor Management Relations Act, 1947, as Amended,
Title II, Section 203, which defines Federal Mediation and
Conciliation Service functions, contains a precatory
subsection, (d), which reads as follows:
Final adjustment by a method agreed upon by the
parties is hereby declared to be the desirable method for
settlement of grievance disputes arising over the
application or interpretation of an existing
collective-bargaining agreement. The Service is directed
to make its conciliation and mediation services avilable
in the settlement of such grievance disputes only as a
last resort and in exceptional cases. [Emphasis
supplied.]
The statutory provision quoted, clearly, cannot be
considered language of limitation directly calculated to
circumscribe this Board's power, or field of responsibility.
Surely, however, the subsection suggests a general
Congressional purpose to permit employers and labor
unions with established bargaining relationships to fashion
their own procedures for dispute settlement and
problem-solving with respect to minor intra-plant
frictions, through collective dealing free from
governmental intervention or statutory sanctions. See
Valtin, "Preventive Mediation, Grievance Disputes and
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Taft-Hartley Act," Vol. 7, Labor Law Journal,
December 1956, p. 768, in this connection . Might not a
Board decision - clearly within its discretion - which
disclaims any statutory mandate to dictate the precise
procedure which employers and unions must follow when
dealing with "pre-grievance" disciplinary situations,
likewise, comport with the general Congressional purpose
described?
3. Conclusions
Despite these suggested questions regarding the
general applicability herein of this Board's relevant
decisional doctrine, with particular reference to its present
formulation - some disposition of General Counsel's
present case, nevertheless, must be made. And, briefly
stated, Respondent's course of conduct - reviewed and
tested with due regard to present decisional standards -
reveals, within my view, no statutory violation.
First. If Heimgartner's September 1st conference with
Prince must be classified with due regard for those
objective manifestations which provide clues regarding its
purpose this trier of fact finds himself, on balance,
constrained to characterize its thrust as fact-finding,
rather than disciplinary. True, Heimgartner had previously
received Slagenweit's report; he had, further, received
Gallagher's report regarding one California Highway
patrolman's view relative to that vehicle's compliance with
state Vehicle Code requirements. However, Heimgartner
had not yet heard Prince's version, regarding his claimed
justification for refusing to handle the trailer. He did not,
therefore, know Prince's claimed reason for rejecting
Slagenweit's judgment. Consequently, one cannot find -
confidently that he believed himself possessed of every
relevant "fact" or that he was merely seeking data on
which to formulate a recommendation regarding the
proper degree of discipline for Prince's dereliction.
(In this connection, I note that Slagenweit's report -
though fair and completely factual with respect to Prince's
refusal to drive Respondent's truck until both remaining
defects were corrected - did not mention or summarize
the driver's proffered reason for persisting in that refusal
when told that his superior considered the truck-trailer
"OK" for projected runs. Heimgartner's subsequent
course of conduct - particularly when he requested
Gallagher to seek the Highway Patrol's viewpoint -
suggests that, through managerial expertise, he may well
have anticipated Prince's defense; he could not, however,
really have known how cogent or persuasive that defense
would be.)
When reported "insubordination" generates a potential
disciplinary situation, the concerned worker's chance to
explain or justify his conduct represents an essential part
of management's investigation. See, Slichter, Healy and
Livernash, The Impact of Collective Bargaining on
Management , The Brookings Institution, Washington,
D.C., 1960, Chapter 21, "Disciplinary Policies and
Procedures," pp. 624-662, at 646-648. Thus, prior to
Heimgartner' s meeting with Prince, the former's factual
investigation could hardly be considered complete.
(I note, further - in this connection - that Prince's
viewpoint regarding the purportedly defective trailer's
noncompliance with state Vehicle Code requirements
could not, reasonably, have been considered captious or
frivolous. Cf. Bibb v. Navajo Freight Lines, Inc., 359 U.S.
520, 521-523,' 524, 525-526, 528, in this connection. And
Respondent's defensive presentation reflects a concession
that Gallagher was told - when he queried the California
Highway patrolman - that other patrolmen might,
conceivably , deem the trailer in question subject to
warning citations.)
During their talk, Heimgartner did characterize
Prince's position as derived from "opinion " merely. He
did not , however , thereby decry its relevance or
materiality , but merely its weight when proffered as
justification . Further , following Prince 's statement of
position , Heimgartner invited the driver to state whatever
"other" reason he may have had for his refusal to comply
with Slagenweit ' s order . And - when satisfied that
nothing further would be forthcoming - the terminal
superintendent did not , forthwith , declare his decision;
Prince was merely told that a subsequent determination
would be made , with respect to which he would be
advised. With matters in this posture, determination is
warranted , within my view , that Heimgartner 's September
1st meeting with Respondent 's driver was essentially
fact- finding in character.
Second: Nothing in the record , within my view, would
warrant a conclusion that - before the purported
"investigatory" conference in question - Company
management was, regardless of possible developments
therein , precommitted to disciplinary action , with respect
to Prince ' s conduct . In that connection, Heimgartner
testified, without contradiction , that power of decision -
both with respect to whether Prince 's conduct merited
discipline , and with respect to what degree of discipline
would be warranted lay with Respondent ' s higher
supervision.
(The record , considered in totality , does perhaps
suggest that Respondent 's terminal superintendent may
have possessed , at least, the power of effective
recommendation with respect to disciplinary matters. I
note , in this connection , that, when Heimgartner made his
factual report to General Superintendent Walsh regarding
Prince's conduct , he further declared his view that such
conduct did constitute " insubordination " which warranted
discipline , including discharge . This "recommendation"
was received, so far as the record shows, without
discussion, criticism or comment . Further - when Walsh
reported to Sandel thereafter the terminal
superintendent ' s broad recommendation was sharpened;
Walsh flatly recommended discharge, without mentioning
the possibility of less severe discipline . Sandel , however,
promptly concurred with Walsh's Draconian
recommendation; no determination would be warranted,
upon the present record , that lesser disciplinary
alternatives were even considered . With matters in this
posture, certainly , some contention could be made that
Heimgartner ' s claimed lack of formally delegated power
"to discharge or to decide as to disciplinary measures"
should , perhaps, be considered disingenuous. Any
determination , however , that he really possessed such
powers, de facto, since Respondent's higher supervision
did concur with his recommendation, would rest primarily
upon pure supposition . With due regard for Heimgartner's
specific disclaimer in that regard , this record , within my
view, contains no reliable, probative, or substantial
evidence sufficient to warrant its rejection.)
Further , should a determination be considered
warranted , arguendo , that Heimgartner's subsequent
postmeeting recommendation on Prince 's discipline
constituted a managerial "decision" with respect thereto,
any conclusion that Respondent's terminal superintendent
had really "made up his mind" regarding the matter
before his conference with Prince would necessarily rest
upon inference, merely.
TEXACO, INC.
General Counsel presently suggests , in this connection,
that - because Heimgartner first directed Gallagher to
seek "verification" when Prince reported, with respect to
Slagenweit's memorandum - he was really "attempting
to elicit" some sort of confession. The suggestion, within
my view, lacks persuasive power, since, as previously
noted, Respondent's driver was likewise solicited to state,
additionally, whatever reasons he might have had for
refusing to follow directions. Further, General Counsel
contends that Heimgartner's supposedly closed mind, with
respect to Prince's guilt and liability to discipline, was
shown when Respondent's terminal superintendent
"proceeded to argue and debate" regarding the merit of
Prince's proffered justification. This contention, within my
view, reflects hyperbole; the record shows that
Heimgartner did no more than mildly characterize
Prince's rationale, regarding the relevant California
Vehicle Code requirements, as derived from "opinion"
merely. Finally, General Counsel points to the fact that
Prince's suspension without pay, first set for one day, was
subsequently extended following his meeting with
Respondent's terminal superintendent. This action, so the
argument seemingly runs, reflects a pre-meeting
managerial decision, consensus or commitment that some
disciplinary reaction would be warranted. The contention
fails to persuade. Testimony proffered in Respondent's
behalf, which stands herein without dispute or
contradiction, warrants a determination that such
"interim" suspensions, pending a higher final decision
with respect to possible discipline, do not necessarily
presage punishment or reprisal. And, whatever conclusions
might be considered warranted regarding the significance
of suspension without pay in some different situation, this
trier of fact is satisfied that Prince's temporary
suspension, herein, should be considered a neutral
circumstance.
Third: Contrary to General Counsel's contention, no
persuasive warrant can be found, within the present
record, for a determination that Respondent's truck driver
- when requested to report for his September 1st
conference with Respondent's terminal superintendent -
either knew or had reasonable grounds for belief that "he
was in jeopardy of losing his job" therein, or suffering
some lesser discipline. Nothing in the record suggests that
- when Prince telephoned Gallagher, and requested
permission to bring Boldt with him - he then knew about
Heimgartner's personal trip to view his purportedly
defective trailer, or that he knew about Gallagher's
consultation with a California Highway patrolman.
(Even had he known these developments, Prince would
have had no clue that Heimgartner proposed to do any
more than discuss his refusal to drive the trailer or restate
Respondent's policy regarding the handling of defective
equipment, or to warn him against a repetition.)
When making his telephone call, Prince knew merely
that he had been suspended for "this date only" pending
Heimgartner's review. This single fact standing alone -
within my view - provided Prince with no "reasonable
ground for belief" that Respondent's management was,
already, determined to discipline him. Conceivably, a
designated "temporary" suspension - within a context of
collateral circumstance reasonably sufficient to justify a
conclusion that management 's disciplinary determination
has already been made -- might well cause a concerned
worker to fear discipline. When such a worker, however,
lacks knowledge regarding any relevant collateral
circumstances, his purported fear that "suspension
pending review" presages discharge or lesser discipline can
987
hardly be considered reasonably grounded.
(Within the Board's Texaco Inc. Houston Producing
Division brief, on Petition to Review - previously noted
- two generally comparable cases, wherein related
charges of statutory violation were finally dismissed, are
distinguished . Electric Motors and Specialties , Inc., 149
NLRB 1432, 1440, Dobbs Houses, Inc., 145 NLRB 1565,
1570-71 The Board notes, within its brief, that neither
case involved employees "suspended " prior to their
confrontation with management This distinction,
however, does not, necessarily , carry a connotation that
the fact of suspension, considered in isolation , represents
the crucial factor in these cases . Elsewhere within the brief
now under consideration the Board notes, particularly,
that respondent therein had suspended Alaniz (the worker
concerned ) under circumstances which made it unlikely
that management thought him innocent . This rationale
suggests , certainly , that the significance of suspensions
prior to confrontation - that is, their reliability as a sign
of management ' s disposition to proceed with disciplinary
action - must be considered dependent upon their total
context.)
And, when Respondent ' s terminal superintendent -
following their talk subsequently extended Prince's
suspension , he declared specifically that such action was
being taken pending a final determination , which would
later be communicated . Though Prince was , thereby,
clearly put on notice that he might suffer temporary
hardship , Heimgartner 's action did not - within my view
- create any greater "jeopardy" than Slagenweit 's initial
"this date only" suspension had.
Fourth: General Counsel , within his summation, has
mentioned Respondent's failure to notify Complainant
Union when a decision was reached with respect to
Prince ' s discharge . Further, General Counsel notes
Respondent's failure to invite Complainant Union's
representative , when summoning Prince for his
termination interview . Such claimed non-feasance,
however, cannot be considered part of the statutory
violation herein charged. Its significance - assuming,
arguendo, that it may be considered relevant and material
under any view of this case - derives merely from such
light as managerial post facto conduct may reasonably
cast upon Respondent ' s prior motivation . And, when
evaluated thus, Respondent's failure to solicit or permit
Complainant Union's presence when Prince was notified
with respect to his discharge can hardly be considered
persuasive proof that Heimgartner's September 1st
conference had really been "focused " on how to discipline
a reportedly recalcitrant driver.
D. Conclusions
Since I have found the present record insufficient to
sustain General Counsel's contention, that Respondent's
management violated the statute when it refused
permission for Complainant Union's representative to
attend Heimgartner's scheduled September 1st conference
with Prince, I conclude that General Counsel's Complaint
herein merits dismissal, and I will so recommend.
CONCLUSIONS OF LAW
1. Texaco Inc., Los Angeles Sales Terminal, is an
employer within the meaning of Section 2(2) of the Act,
engaged in commerce and business activities which affect
commerce within the meaning of Section 2(6) and (7) of
the Act, as amended.
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2 General Truck Drivers, Chauffeurs and Helpers,
Local 692, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, is a
labor organization within the meaning of Section 2(5) of
the Act, as amended, which admits employs of
Respondent to membership.
3. General Counsel has not, herein, produced reliable,
probative or substantial evidence sufficient to justify a
determination that Respondent did engage, or that it
presently continues to engage, in unfair labor practices
affecting commerce, within the meaning of Section 8(a)(l)
or (5) of the Act, as amended.
RECOMMENDED ORDER
Upon these findings of fact and conclusions of law, and
upon the entire record in this case, my recommendation is
that the Board, pursuant to Section 10(c) of the National
Labor Relations Act, as amended , dismiss the present
complaint in its entirety.