Texco Inc.

National Labor Relations Board - Board Decisions

Jan 30, 1980

247 N.L.R.B. 688 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Texaco Inc. and Local 8-623, Oil, Chemical &
Atomic Workers International Union, AFL-CIO.
Case 22-CA-8323
January 30, 1980
DECISION AND ORDER
On January 8, 1979, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the findings and conclusions
of the Administrative Law Judge only to the extent
consistent herewith.
The Administrative Law Judge found that Respon-
dent violated Section 8(a)(1) of the Act by requiring
an employee to participate in a disciplinary interview
without his union representative, where the employee
had reasonable grounds to believe that disciplinary
action would result from the interview, and where the
employee had requested such representation. Respon-
dent has excepted to the Administrative Law Judge's
finding that it violated Section 8(a)(1) of the Act. We
find merit in that exception.
The parties to the instant proceeding signed a
stipulation in which they waived any hearing before an
administrative law judge, agreed to a detailed written
statement of facts, and jointly requested that the case
be assigned to an administrative law judge for the
purpose of initial decision. The stipulated record
reveals that Respondent and Local 8-623, Oil, Chemi-
cal & Atomic Workers International Union, AFL-
CIO (hereinafter the Union), are parties to a collec-
tive-bargaining agreement covering a unit of employ-
ees at Respondent's Bayonne Terminal. Mark Spinar-
elli, an employee for the past 7 years at the Bayonne
Terminal and a member of the Union, is employed as
a pipefitter's helper in the mechanical department.
Spinarelli's working hours are from 8 a.m. to 4 p.m.
On March 27, 1978,' shortly before quitting time,
Spinarelli left his work area with his father-in-law,
Thomas J. Hughes, without receiving permission from
a supervisor in the mechanical department. Although
Hughes was a supervisor in the bulk oil and com-
pound department, he was not Spinarelli's supervisor
and had no authority to permit him to leave his work
area prior to quitting time. It is undisputed that it is a
proper ground for discipline if an employee leaves his
work area without prior permission from his depart-
mental supervisor.
' Hereafter all dates are in 1978.
On March 28, at 7:30 a.m., Michael Halick, the
acting foreman of the mechanical department, called
Spinarelli to his office along with Assistant Foreman
Eugene Keogh. Halick asked Spinarelli where he had
been prior to quitting time on the preceding day, and
Spinarelli replied that he had been with Hughes.
Halick stated that Spinarelli had left the mechanical
department without the permission of his supervisor,
and that he had also left the Bayonne Terminal before
quitting time without signing out at the gate. Spinarel-
ii admitted that he had left his department, but he
denied leaving the plant, and he suggested that Halick
speak to Hughes. Halick concluded the meeting by
stating that he would get back to Spinarelli later in the
day.
Later that morning, after management had decided
that Spinarelli would be given a written warning for
leaving his work area without permission, Halick met
with Edward F. Eley, suoervisor of employee relations
at the Bayonne Terminal. Eley instructed Halick to
meet with Spinarelli that afternoon to advise him of
the disciplinary action upon which Respondent had
decided.
During the afternoon of March 28, Halick informed
Spinarelli that he would be seeing him later in the day.
About 3:45 p.m., Halick called Spinarelli into his
office. Referring to written notes which had been
prepared by Eley, Halick advised Spinarelli that he
had left his work area early without permission from a
supervisor in the mechanical department, and that
Spinarelli was responsible for his own actions and
should not rely on Hughes to answer for him. Halick
added that Spinarelli had also left the plant early
without signing out. Spinarelli then denied leaving the
plant early, and he demanded to know who had seen
him leave the plant. When Halick refused to reveal his
source, Spinarelli demanded his union delegate. Hal-
ick replied that Spinarelli should sit down and listen,
that he had one more item to cover, and that
afterwards Spinarelli could see his delegate. When
Spinarelli asked Halick if he was being denied union
representation, Halick said "no," and that Spinarelli
could get his union representative as soon as Halick
finished his last point. Halick then concluded his
remarks as follows:
I must specifically warn you not to leave your
job at any time, under such circumstances, during
working hours without prior permission of a
Mechanical Dept. supervisor-or you will face
more severe discipline.
You will receive a letter of warning confirming
this conversation.
247 NLRB No. 56
688
TEXACO INC.
Spinarelli replied that he would not accept a
warning letter and left Halick's office.
About 10 minutes later, Spinarelli returned to
Halick's office with his union delegate, George Ponik,
at which time Halick repeated that which he had
previously told Spinarelli during the earlier meeting.
On March 29, Spinarelli received a letter confirming
his March 28 meeting with Halick. The letter stated
that Spinarelli was warned about leaving his work area
without the permission of his supervisor, and that a
repetition of such action by Spinarelli could result in
more severe disciplinary action.
The Administrative Law Judge found that since the
interview was clearly disciplinary in nature, and
inasmuch as Respondent denied Spinarelli's request
for union representation and continued the interview
in the absence of a union representative, Respondent
violated Section 8(a)(1) of the Act. The Administra-
tive Law Judge relied upon the Board's decision in
Certified Grocers of California2 to support his finding
that an employee has the right to request union
representation at a disciplinary interview.
However, in Baton Rouge Water Works Company3
which issued after the Administrative Law Judge's
Decision herein, a majority of the Board reversed
Certified Grocers and held that under the Supreme
Court's decision in N.L.R.B. v. J. Weingarten, Inc.,'
an employee has no Section 7 right to request the
presence of his union representative at a meeting with
his employer held solely for the purpose of informing
the employee of, and acting upon, a previously made
disciplinary decision. The Board, in Baton Rouge
Water Works Company, reasoned that:
. . .as long as the employer has reached a final,
binding decision to impose certain discipline on
the employee prior to the interview, based on
facts and evidence obtained prior to the interview,
no Section 7 right to union representation exists
under Weingarten when the employer meets with
the employee simply to inform him of, or impose,
that previously determined discipline.
In the instant case, the record clearly reveals that
Respondent had reached a final decision to discipline
Spinarelli prior to the afternoon meeting of March 28
at which Spinarelli was informed of his discipline. The
record is also clear that Respondent had reached that
decision based upon facts and evidence which it had
obtained prior to the afternoon meeting of March 28.
Finally, it is undisputed that the sole purpose of the
meeting was to inform Spinarelli of his discipline.
Accordingly, we find that Respondent did not violate
227 NLRB 1211 (1977).
' 246 NLRB 995 (1979).
'420 U.S. 251 (1975).
' Id. at 997.
Section 8(a)(1) of the Act by denying Spinarelli's
request for union representation at his disciplinary
interview, and we shall dismiss the complaint in its
entirety.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
CHAIRMAN FANNING, concurring:
I would dismiss the complaint.
When Spinarelli asked for a union representative,
Halick said that he had one more thing to say and
then Spinarelli could see his delegate. Halick then
ended his comments. Spinarelli returned 10 or 15
minutes later with his union delegate, and the whole
session was repeated.
It is unnecessary to consider the nature of the
interview. Whatever rights Spinarelli had been de-
prived of were surely restored when, in 15 minutes, he
had an interview with his representative present.
Therefore, I would dismiss.
MEMBER PENELLO, concurring:
I agree with my colleagues in the majority that the
complaint in the instant case should be dismissed in its
entirety. However, I would do so on entirely different
grounds that those relied upon by my colleagues.
In my dissenting opinion in Baton Rouge Water
Works Company,' I expressed at some length my view
that "the Section 7 right of an employee to request the
presence of his union representative at a disciplinary
interview was firmly established by Board law prior to
the Supreme Court's decision in Weingarten, and, as
indicated by a Board majority in Certified Grocers, the
Supreme Court's decision in Weingarten merely reaf-
firmed the existence of that Section 7 right."8 Thus, I
would not deny an employee the right to request union
representation at a strictly disciplinary interview.
In the instant case, the record is clear that during
the afternoon interview of March 28 employee Spinar-
elli was informed of certain disciplinary action being
taken against him, and, upon being informed of such
action, he requested union representation. Thus,
contrary to my colleagues in the majority, I would not
deny Spinarelli his Section 7 right to request his union
representative at the afternoon meeting of March 28
simply because that meeting was called by Respondent
solely to inform Spinarelli of the disciplinary action
taken against him.
Id. at 998.
' 246 NLRB 995 (1979).
' Id. at 1000.
689
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, the record further reveals that following
Spinarelli's request for union representation and Hal-
ick's denial of that request Halick stated only the
following words to Spinarelli before ending the inter-
view:
I must specifically warn you not to leave your
job at any time, under such circumstances, during
working hours without prior permission of a
Mech. Dept. supervisor--or you will face more
severe discipline.
You will receive a letter of warning confirming
this conversation.
Other than Spinarelli's statement to Halick that he
would not accept such a written warning, no other
words were exchanged between the two men following
Halick's denial of Spinarelli's request for union repre-
sentation.
Thus, the facts in the instant case are strikingly
similar to those relied upon by the Board in Amoco Oil
Company.9 In that case, the employer called an
employee into an office for the express purpose of
invoking discipline. Immediately upon being informed
of the discipline, the employee requested union repre-
sentation. The employer's representative replied that
he would send for a union representative when he was
finished talking with the employee. When the employ-
ee insisted that he would not talk with anyone until he
saw his union representative, the employer's represen-
tative terminated the conversation by informing the
employee that: "I'll make it short and simple, you are
suspended as of 4 p.m. indefinitely; if and when you
return to work you will receive a white slip." The
Board found no violation of Section 8(a)(1) by the
employer, relying upon the fact that following the
employee's repeated requests for union representation
the employer's representative "confined himself to a
single sentence informing [the employee] of his sus-
pension; he made no attempt to question him, engage
in any manner of dialogue, or participate in any other
interchange which could be characterized as an
interview.'"°
Similarly, the record is clear in the instant case that
following Spinarelli's request for union representation
and Halick's denial of that request Halick simply
terminated the interview by informing Spinarelli of the
disciplinary warning he was receiving and the reason
for that warning. Halick clearly did not attempt to
question Spinarelli or engage him in any dialogue or
interchange. Since Respondent merely ceased the
interview rather than comply with Spinarelli's request
for union representation at the interview, it is clear
that Respondent complied with the Supreme Court's
Decision in Weingarten and did not violate Section
8(a)(1) of the Act.
However, assuming arguendo that Halick's closing
comments to Spinarelli could be interpreted as engag-
ing Spinarelli in a dialogue or interchange of a
questioning nature, I agree with Chairman Fanning
that, inasmuch as Spinarelli was granted another
interview in the presence of his union representative
approximately 10 minutes following the original inter-
view, whatever rights Spinarelli was deprived of were
restored when he had the subsequent interview in the
presence of his union representative.
Accordingly, I would dismiss the complaint in its
entirety.
'238 NLRB 551 (1978).
'o Id. at 552.
DECISION
STATEMENT Of THE CASE
THOMAS A. RIccI, Administrative Law Judge: On May 9,
1978, the General Counsel issued a complaint in this
proceeding against Texaco Inc., herein called Respondent or
the Company. The complaint was based upon a charge filed
on March 30, 1978, by Local 8-623, Oil, Chemical and
Atomic Workers International Union, AFL-CIO, herein
called the Union. The issue is whether, as alleged in the
complaint, Respondent violated Section 8(aX)(1) of the
National Labor Relations Act, herein called the Act, by
denying the request of one of its employees to be accompa-
nied by a union agent during the course of a disciplinary
interview. In its answer Respondent denies commission of
any unfair labor practice.
Early in October 1978 all parties signed a stipulation in
which they waived any hearing before an administrative law
judge, agreed to a detailed written statement of facts, and
jointly requested that the case be assigned to an administra-
tive law judge for purposes of initial Decision. On October
19, 1978, I was so designated by the Chief Administrative
Law Judge. In response to my invitation, briefs were
thereafter filed by the General Counsel and Respondent.
Upon the entire record as made, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a corporation organized in the State of New
Jersey, maintains a place of business in Bayonne, New
Jersey, where it is engaged in the sale and distribution of
petroleum and related products. This is the only one of its
facilities involved in this proceeding. During the preceding
12 months, a representative period, at this location Respon-
dent purchased and had delivered to this plant goods and
materials valued in excess of $50,000 delivered from out-of-
state sources. I find that Respondent is engaged in com-
merce within the meaning of the Act.
690
TEXACO INC.
II. THE LABOR ORGANIZATION INVOLVED
I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICE
A. The Question Presented
The Board has long held, with court approval, that an
employee called to the office of management for a disciplin-
ary interview has a right, on request, to be accompanied by
his union representative. See Quality Mfg. Co.. 195 NLRB
197 (1972); N.L.R.B. v. J. Weingarten, Inc., 402 U.S. 251
(1975). The Board has also held that if the employer prefers
not to have the union agent present during such an interview
it may exercise that privilege by simply not holding the
proposed interview at all. See Amoco Oil Company, 238
NLRB 551 (1978). And, consistent with all this, very
recently the Board ruled that after the interview has ended
an employee's request to be represented by his union agent is
a meaningless gesture and cannot support an unfair labor
practice finding. See Greyhound Lines, Inc.. 239 NLRB 849
(1978).
In the case at bar the employee only decided in the middle
of the interview that he wanted his union agent present and
therefore told the supervisor, who was telling him why his
errors endangered his job, that he wanted to call in the union
representative. The supervisor denied the request, saying he
must first complete his prepared talk of criticism and
warning. Is it too late, in the middle of the interview, when
the employee fully appreciates the danger to his job, for him
to call for the support of his union agent? I think not.'
B. The Pertinent Facts
The employee involved in this case was Mark Spinarelli, a
pipefitter helper working for 7 years and a member of the
Union. On March 28, 1978, before work starting time, two
supervisors-Michael Halick and Eugene Keogh-talked to
him in an office to discuss reports they had received that
Spinarelli had the day before improperly left his work station
without permission and also improperly left the plant
altogether. The employee admitted leaving his work station
before quitting time but asserted that he had first obtained
correct approval; as to the second offense charged to him, he
denied having left the plant early. With this, the supervisors
said that they would look into the matter further and "get
back" to Spinarelli later in the day.
Later that morning management decided to give the man
a written warning for these two asserted derelictions, and
Halick was asked to meet with Spinarelli and talk to him of
the disciplinary action. Halick was given prepared typewrit-
ten notes as "guidance" to him in the interview. Late in the
afternoon he called Spinarelli to his office and talked to him.
Among the facts agreed upon in the stipulation among the
parties is the statement: "At that time [before the interview]
From the Board's decision in Greyhound Lines. supra:
In affirming the Administrative Law Judge's decision we do not adopt
any implication contained therein that an employee's failure to request
Spinarelli had a reasonable expectation that disciplinary
action would then be taken."
In the interview the foreman, Halick, repeated the
Company's conviction that the man had in fact left his work
area without permission, and that what Spinarelli said was a
proper permission from his father-in-law was not sufficient
defense. The supervisor then went on to say that the
Company was convinced the employee had also left the plant
when he should not have done so. Now Spinarelli "demand-
ed to know" who had seen him do that. The foreman refused
to say. It was at this point that Spinarelli "jumped up" and
demanded his union delegate. The supervisor replied, still
according to the precise stipulation, "that Spinarelli should
sit down and listen, that he had one more item he wished to
cover and that afterwards Spinarelli could see his delegate if
he wished." With this the foreman continued as follows with
his prepared notes:
I must specifically warn you not to leave your job at any
time under such circumstances during working hours
without prior permission from mechanical department
supervisor or you will face more severe discipline. You
will receive a letter of varning confirming this conver-
sation.
The next day Spinarelli received the written warning
about all this, of which the foreman had spoken the day
before.
C. The Defense
The defense rests essentially upon the assertion that this
was not an interview at all, either investigatory or disciplin-
ary. With this, all case precedent on the subject is swept
aside. At one point Respondent's brief cavalierly likens the
prepared talk Foreman Halick delivered to Spinarelli to a
passing remark a foreman might have "called across the
room" in the work area to an employee saying "he would be
receiving a letter of warning." If this is all management
meant to do to Spinarelli that day, then this is what Halick
should have done. He did more. Why? If all that was to
happen was to inform the employee of a fact then why did
Halick have to have a prepared statement to "guide" him?
Quite inconsistently, the company brief also says that after
refusing Spinarelli's demand for his union delegate Halick
continued "reading from his script." (Emphasis supplied.)
Right there appears the clear admission that the purpose of
the interview, or talk, or however one chooses to label the
tete-a-tete that was staged was something quite other than a
one-sentence statement of fact.
Rather, the substance of what was intended by manage-
ment, and what in fact took place, was a deliberately
planned intimidation of the employee. Every time a supervi-
sor talks to an employee about possible discipline, repri-
mand, or warning he is telling the man that he is in danger of
suffering a disadvantage in his job. The purpose is not to fire
the man, but to prevail upon him to work in keeping with
the employer's interest. After all, no employer just wants to
lose employees; it wants work out of them. Indeed, this is the
union representation at the outset of an investigatory interview consti-
tutes a waiver of the employee's right to request such assistance at some
later point during that interview.
691
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purpose of all forms of reprimands, or disciplinary action,
whether they be in the form of notices recorded in a man's
personnel file or successively longer suspensions from work.
In short, the object of the entire system-often carefully set
out in the collective-bargaining agreement-is to put the fear
of God into the man who fails to do his job as he is supposed
to. And the threat is to his conditions of employment.
This is why the man has a right to be represented by his
union agent when things like this are done to him by the
employer. An employer who just tells a man that he is fired
does not have to talk with the union about it unless the
union asks for discussion, be it by filing a grievance or
otherwise. Likewise, if the employer merely hands the man a
warning, reprimand, or suspension notice, or puts it in his
personnel file, there is no obligation to volunteer to discuss it
with the union representative except upon request. It is only
when the intimidating technique-albeit still intended only
to force better work performance by the man-takes the
form of private discussion or interview or interrogation that
the man has a right under the statute to be accompanied by
his collective-bargaining agreement. This is the essence of
Board law as reflected in the Weingarten decision.
Although variously phrased, the defense contention seek-
ing to avoid a finding that this was a disciplinary interview
remains unpersuasive. Counsel argues that the decision to
issue the reprimand had already been reached by manage-
ment before the supervisor called Spinarelli to the office.
While this may be true, insofar as Spinarelli was concerned it
mattered not one whit for all he realized as the interview
proceeded was that he found himself in hotter and hotter
water. It is a fact that Halick kept calling his faults to his
attention one at a time. When the employee disputed the
damaging assertions, the supervisor ducked. All this could
have been avoided had Halick simply handed Spinarelli a
written notice of any kind. He did not have one to deliver,
for it was not written until the next day.
At another point Respondent says that the interview was
over, anyway, when Spinarelli asked for the union delegate.
On the face of the stipulation, this is plainly not true.
Instead, Halick, after refusing permission to call the union
agent, told the man to "sit down and listen," because he had
"one more item . . . to cover." And he went on talking,
adding another "specific warning." If this was not a
disciplinary interview then there never was one. When the
company brief refers to a recent, and a very pertinent Board
decision, as an "aberration" (Certified Grocers of California,
227 NLRB 1211 (1977)), I do not think it necessary to
respond. Certified Grocers is right on the nose; the written
notice had in truth been prepared in advance, the supervisor
detailed the offenses, and he handed the prepared notice to
the employee then and there. The sole difference between
that case and this is that here Spinarelli was alerted to the
need for union representation as the intimidating talk went
on, while in Certified Grocers the employee was scared
enough at the start of the interview to call for union
representation.
In the end, this case exemplifies the rationale underlining
the entire line of cases. An employee has a right to union
representation when being interviewed for disciplinary pur-
poses, and the reason is because he is afraid for his job. Some
employees are more easily frightened than others and
therefore ask for their union delegates at the start. Others
are more independent or less experienced and start with
greater personal confidence. As the intended point of the
interview comes home to them, they too get scared and call
for help. Having waived the right during half of the
intimidating talk, have they forfeited it for the next half?
Logic dictates a negative answer.
Finally, as the United States Supreme Court also said in
Weingarten: "A knowledgeable union representative could
assist the employer by eliciting favorable facts, and save the
employer production time by getting to the bottom of the
incident occasioning the interview." Had Respondent per-
mitted Spinarelli's union delegate to be present at his
disciplinary interview, the reprimand issued to him the next
day might never have been given. After all this "it becomes
increasingly difficult for the employee to vindicate himself,
and the value of representation is correspondingly dimin-
ished. The employer may then be more concerned with
justifying his actions than re-examining them." Therefore, I
think that the General Counsel correctly requests that as
part of the remedy here Respondent must be ordered to
revoke and expunge from its records the disciplinary notice
given to Spinarelli on March 29, 1978.
In conclusion, I find that by refusing Spinarelli's request
to be represented by his union delegate during the disciplin-
ary interview of March 28, 1978, Respondent has violated
Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations described
in section I, have a close, intimate, and substantial relation-
ship to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Respondent must be ordered to cease and desist from
refusing to permit employees being subjected to disciplinary
interviews from having their union representative present. It
must also be ordered to remove from the personnel file of
Mark Spinarelli the warning notice issued to him.
CONCLUSIONS OF LAW
1. By requiring employees to participate in disciplinary
interviews without union representation where such union
representation has been requested by employees where
employees have reasonable grounds to believe that the
matters to be discussed may result in their being the subject
of disciplinary action, Respondent has violated Section
8(a)(1) of the Act.
2. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Section
2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
692