Texaco, Inc.

National Labor Relations Board - Board Decisions

May 16, 1979

242 N.L.R.B. 291 (N.L.R.B. 1979)

TEXACO. INC.
Texaco, Inc. and Local 14, Office & Professional Em-
ployees International Union, AFL-CIO, CLC. Case
4-CA 9140
May 16, 1979
DECISION AND ORDER
BY MEMNIURS JENKINS, MURPIY. ANI) TRtI:SI)AI1F
On March 6. 1979, Administrative Law Judge John
P. von Rohr issued the attached Decision in this pro-
ceeding. Thereafter. the General Counsel filed excep-
tions and a supporting brief, and Respondent filed a
brief in response to General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended. the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative L.aw Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 101c) of the National Labor
Relations Act, as amended. the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative .aw Judge and hereby or-
ders that the complaint be, and it hereby is, dismissed
in its entirety.
DECISION
SIAI1 MEN I o() Itl CASI-
JOHN P. ON ROIR, Administrative Law Judge: Upon a
charge filed on January 5, 1978. the General Counsel of the
National Labor Relations Board. by the Regional Director
for Region 4 (Philadelphia, Pennsylvania). issued a com-
plaint on February 24. 1978. against Texaco, Inc., herein
called Respondent or the Company. alleging that it had
engaged in certain unfair labor practices violalive of Sec-
tion 8(a)(I ) and (3) of the National Labor Relations Act. as
amended, herein called the Act. Respondent filed an ans er
denying the allegations of unlawful conduct in the com-
plaint.
Pursuant to notice, a hearing was held before me in
Philadelphia, Pennsylvania, on July 28, 1978. Briefs were
received from the General Counsel and Respondent on
September 28. 1978, and they have been carefully consid-
ered.'
Upon the entire record in this case and from my observa-
tion of the witnesses, I hereby make the fillowing:
I Thereafter the Respondent filed a supplemental memorandum to which
the General Counsel filed a reply.
FINDINGS ()F FA( I
I. Tll BtH SINISS ()1 RFSFP(NIt)NI
Respondent is a Delaware corporation engaged, inter
alia, in the refining of petroleum and petroleum related
products. The onl facilitN involved in this proceeding is
that known as the Eagle Point facility in Westville. Nevs
Jersey. )uring the last year Respondent had gross revenues
in excess of $500,000 and purchased goods valued in excess
of $50.000 from suppliers located outside the State of New
Jersey. It is conceded. and I find. that Respondent is en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
11. 11i 11 AIIO()R )R(iANIA AII()N 1NS()l Il)
Local 14, Offlice & Professional tmploces International
Union, AFI. C10. ('1C'. herein called the Utnion. is a labhor
organization iththin the meaning of Section 2) o the Act.
111. ilt t N[AIR I lB)R I' RA( Ill IS
.A. 71The tlw.
There are two issues in this case. The first is whether. as
alleged in the complaint, Respondent suspended emploee
Gary Renzi on December 21. 1977. in violation of Section
8(a)( ) and (3) of the Act. he second is whether Rcspon-
dent unlawfully refused to permit Renzi to have it union
representative present during an alleged disciplinar inter-
view which took place on the same date.
[3. 7he' kF t
The ;acts in this case are not in material dispute. .m-
plovd with Respondent since 1970(. Ciar Renzi held the
job of cashier since about 1975. Apart from the incident
which prompted his receiving a 3-day suspension in the lat-
ter part of l)ecemher 1977. the (ieneral Counsel has a the-
orv which relates to a certain background incident. the facts
of which I preliminaril, set forth as follows: On October 14.
1977. Renzi suffered an injury in an auto accident while
engaged in coipann business. Shortl after the accident.
Renzi contacted certain other compan} emploees and
sought to obtain fronm them the name of Respondent's auto-
mobile insurer. Unl successful in this effort. he enlisted the
services of his unioi steward. John Ballistreri. emplo ed be
Respondent as a file clerk.' Ballistreri made the rounds and
finally was able to obtain the information rom a Mr.
Chiaradonna in the engineering department. s ho gave him
the name of the insurer. Chiaradonna mentioned the inci-
dent to James Van Natta. Respondent's assistant chief ac-
countant. Van Natta thereupon broached Ballistreri. the
steward. and told him that the matter was none of his busi-
ness, that he had a chip on his shoulder. and that he should
2 It appears that Renzi had some problem ailh the companl, do.lor hotlt
the paymeni of hills and i shed i. consult ith Respondenl's insurer di-
rectly.
The tinion herein has been the bargaining representlle o! Rspon-
dent's clerical emploees since 1952
242 NLRB No. 60
291
D)ECISIONS OF NATIONAI. LABOR RELATIONS BOARD
leave the matter alone. However, he never took up the mat-
ter with Renzi and the incident was never mentioned again.
Turning to the incident leading to the instant dispute, it
was about 10 a.m. on December 21. 1977, when Van Natta
received a call from one Howard Morrissey, a retired em-
ployee, who informed him that although he had sent in a
check covering Blue Cross premiums for the months of No-
vember and December, he nevertheless had received a letter
from Renzi stating that his Blue Cross payments were 2
months in arrears. Since Renzi's duties included the pro-
cessing of Blue Cross premium payments, Van Natta went
to Renzi to inquire about the matter. Upon being apprised
by Van Natta of Morrissey's call. Renzi first looked at the
entries in his cash book. He then went to look in a vault
which was behind his desk. When he returned to his desk
and opened the bottom desk drawer, Van Natta, who was
standing by, observed a number of uncashed Blue Cross
premium checks in the drawer. (These were later counted
and found to be 37 in number and were dated as far back as
December 7, 1977.) In any event, when Van Natta spoke to
Renzi about the matter, Renzi only replied, "Well, they're
there." When Van Natta stated that this was a very serious
matter and that he could be in trouble. Renzi responded.
"Bull."
Van Natta testified that he resented Renzi saying "bull"
to him in front of other employees. Within a few minutes he
summoned Renzi into his office where, he said, he pro-
ceeded to give him a "real lecture." Van Natta testified "I
told him that I talked to him like a gentleman, I expected to
be treated like a gentleman, I was not going to take that
sort of thing from him." Concerning the foregoing, Renzi
agreed that Van Natta "lectured" him for the reason testi-
fied to by Van Natta, but testified that Van Natta "also
mentioned about the checks, that I should have known bet-
ter to keep checks longer than three days." I have no doubt
that Van Natta did make a remark to this effect at that
time.4
At some point during the same day, December 21, Van
Natta reported the check incident to his supervisor, the
chief accountant, Thomas Mahoney.5 Mahoney thereupon
arranged a management meeting that was held later that
day, about 4 p.m., to determine what action, if any, should
be taken.6 In addition to Mahoney and Van Natta, also
present were R. R. Dickinson, the plant manager; Mr.
Brakke, a maintenance and construction supervisor; and
Mr. Ellenberg, supervisor of employee relations. At this
meeting the facts of the case were discussed. Van Natta
recommended that Renzi be given a 3-day suspension. The
plant manager called for a vote of all those present, where-
upon a vote was taken with the resultant decision that Van
Natta's recommendation be adopted. Van Natta was there-
upon instructed to implement the group's decision.
In the meantime Renzi sought out Ballistreri and related
the incident of his having been called into Van Natta's of-
fice. Ballistreri told Renzi that if he were to be called in
' When asked if the checks were mentioned during this meeting. Van Nat-
ta simply testified, "I had already talked to him about the checks before. I
don't recall at that meeting talking to him about the checks."
I This was after Van Natta had determined the number and dates of the
checks that were discovered in Renzi's desk.
s Van Natta testified that it was company practice to hold management
meetings of this type for the purpose of determining disciplinary action.
again he had a right to have a union representative present.
In any event, following the meeting of management offi-
cials, Van Natta broached Renzi in the hallway and asked
him to come into his office. Renzi did not follow Van Natta
into the office, however, but instead went down the hall to
summon Ballistreri. Returning with Ballistreri, Renzi asked
Van Natta that the steward be permitted to accompany him
in the office. Van Natta refused, saying that he did not want
the steward in his office. According to Ballistreri, he there-
upon asked if this was going to concern discipline. Ballis-
treri said that when Van Natta replied in the affirmative, he
responded that it was the Union's position that "legally
Gary is entitled to request that a shop steward be present
for this meeting." When Van Natta nevertheless declined
Ballistreri to be present, Ballistreri told Renzi. as Renzi tes-
tified, to "go into the office and see what he wants."
Once inside the office, Van Natta simply told Renzi that
he was being given a 3-day suspension for not handling the
Blue Cross checks for 3 days, and that a formal letter of
reprimand had been placed in his folder. Van Natta then
asked it' he had anything to say, to which Renzi replied,
"Not at this time." With this Renzi left the office and stood
suspended for the next 3 workdays.
C. ('otltc/u.iotns a to Alleged Discrimination Against Renzi
With respect to the alleged discrimination against Renzi,
it is the General Counsel's contention that this employee
was laid off because of certain concerted, protected activi-
ties: namely. that he and Ballistreri undertook to ascertain
the name of' Respondent's insurer for the reason previously
indicated. Assuming that this activity was protected under
Section 8(a)( I) of the Act, I nevertheless find no merit to the
General Counsel's contention. In the first place, while it is
true that at the time Van Natta did express some irritation
to Ballistreri for having looked into the matter, I think it
would be extremely far fetched for me to infer that Van
Natta harbored such resentment over the incident that he
would be motivated to retaliate against Renzi some 2
months later. The General Counsel, however, contends that
Renzi was harassed during the interim for the same reason
and that the December 21 suspension was a culmination of
this harassment. Again, I find the evidence entirely lacking
to support this contention. The only specific evidence intro-
duced in this regard was a memorandum by Van Natta
dated December 9, 1977, addressed "To all concerned."
This memorandum was in response to a letter from Blue
Cross concerning the fact that Respondent had not paid a
recent invoice on time and dealt with the prompt payment
of the Blue Cross invoice by the cashier. It did not mention
Renzi by name nor was it critical of the cashier's job in
general. The memorandum, which was also given to the
relief cashier, was merely placed in the cashier's file folder
and became part of the permanent instructions pertaining
to that job. Whatever the General Counsel's suspicions con-
cerning this memo, the proffered evidence is not supportive
of a finding of harassment. Other than the foregoing, the
other testimony relative to alleged harassment was entirely
speculative and conclusionary and does not warrant discus-
sion herein.
In addition to the fact that the evidence does not show
Respondent to have harbored animosity toward Renzi for
292
sor thereupon terminated the conversation by advising the
employee that he would make it short and simple, that he
was being suspended then and there. The Board held on
these facts that the employee had no statutory right of rep-
resentation inasmuch as the supervisor confined himself to
a single sentence informing the employee of his suspension
and because the supervisor made no attempt "to question
[the employee], engaged in any manner of dialogue, or par-
ticipate in any other interchange which could be character-
ized as an interview." In addition, the Board noted that the
announcement to the employee of his suspension was in
accord with a management decision reached prior to his
demand for representation. This fact, it pointed out, estab-
lished that the suspension was not brought about because
the employee sought union representation.
As in Amoco. Respondent's managerial decision that
Renzi be given a 3-day suspension was afait accompli at the
time that Renzi was summoned to Van Natta's office. At
the short meeting inside the office Van Natta merely in-
formed Renzi of the action taken and of the reason therefor.
The fact that Van Natta terminated the meeting by asking
Renzi if he had anything to say does not, in m view,
change the character of this meeting into that of a disciplin-
ar) interview. Indeed. I am persuaded that this was not the
intent of Van Natta. for there is nothing in the record to
indicate that he held any authority to change or to revoke
the prior managerial decision. If anything. I regard Van
Natta's closing statement as but a polite or expedient wa,
of ending the meeting. No further dialogue followed.
In view of the foregoing. and upon the entire record in
this case. I find that Respondent's denial of Renzi's request
for representation, under the circumstances noted, was not
violative of Section 8(a)( I of the Act. Accordingly, it is
recommended that this allegation he dismissed.
('N( I Sl)NS I.Ai
1. Texaco Inc.. is an cemploer engaged in commerce
within the meanini oft Section 2(6) and (7) of the Act.
2. ILocal 14. Office & Professional Employees Interna-
tional Union. AFl. ('IO. CC. is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent did not violate Section 8(a}(1) and (3) of
the Act as alleged in the complaint.
Upon the foregoing findings of fact, conclusions of law.
and on the entire record in this case, and pursuant to Sec-
tion 10(c) of the Act. I hereby issue the following recom-
mended:
ORDER S
The complaint is dismissed in its entirety.
In the eent no exceptions are filed as provided h) Sec. 102.46 o the
Rules and Regulations of the National Labor Relaionns Board. the findings,
conclusions. and recommended Order herein shall, as provided b Sec
102 48 of,1 the Rules and Regulations, be adopted h the Board and become
its findings. cnclusions. and Order, and all obJections theretlo hall he
deemed alved I;r all purposes
the reason claimed, in mv view the evidence is amply de-
monstrative that Respondent's suspension of Renzi was for
good cause shown. Thus, the record reflects that Respon-
dent has a rule that incoming checks are to be promptly
deposited and that "in no case should checks received be
held more than three days." Although Renzi testified that
he did not recall reading this rule. Van Natta testified with-
out contradiction that it was retained and found. together
with other instructions, in a tolder in Renzi's desk. More-
over, although Renzi conceded that it was his practice to
take the checks to the bank twice weekly, he attempted to
explain his failure to deposit the checks in question by tes-
tifying that toward the end of the year he had "a backlog of
things to do." and that he therefore became behind on the
checks. Although he testified that in the preceding 2 years
he had similarly deferred cashing Blue Cross checks, the
fact is that there is no evidence to show that Respondent
had knowledge of this or that it condoned an! such prac-
tice. Moreover, there is no showing for comparative pur-
poses that in the past years Renzi kept as man\ as 37 un-
cashed checks in his desk or that theN dated as far back as
December 7.
By reason of all the tbregoing, and aside from the fact
that Renzi's holding such a large number of uncashed
checks for such a long period would appear to he negligent
on its face. I find that Respondent's 3-da suspension ot
Renzi was entirely for the reason asserted and not for rea-
sons proscribed by Section 8(a)( I) or (3) of the Act. Accord-
ingly, it is recommended that this allegation in the coim-
plaint be dismissed.
D. Conclusions s to the Right to Union Representation
Issue
As previously indicated, the complaint alleges and the
General Counsel contends that Respondent violated Sec-
tion 8(a)( I) of the Act by denying Renzi's request that a
union steward be present during the late afternoon meeting
to which he was summoned with company official Van Nat-
ta in Van Natta's office. In defense of this allegation. Re-
spondent principally relies upon the Board's recent decision
in Amoco Oil Company., 238 NLRB 551 (1978). The General
Counsel would distinguish this case from .4mloco on its facts
and instead relies on Certified Grocers of Calfornla, Ltd..
227 NLRB 1211 (1977). Upon all the facts in the instant
case. I agree with Respondent that .4moco is controlling
here.'
The Amoco case involved the following: Three employees
were first interviewed by a company official concerning
charges that they had violated a plant rule. There was no
request that a union representative be present during this
interview. Three days later. after the employer had decided
upon certain disciplinary action. one of the employees was
directed to proceed to the supervisor's office. At this point
the employee requested union representation. The supervi-
7 The decision in the Amoco case Issued subsequent to the complaint in the
instant case.
TEXACO. INC. 293