Western Electric Co.

National Labor Relations Board - Board Decisions

Aug 1, 1972

198 N.L.R.B. 623 (N.L.R.B. 1972)

WESTERN ELECTRIC COMPANY 623
Western Electric Company , Hawthorne Works and
International Brotherhood of Electrical Workers,
AFL-CIO, Local Union 1859 . Cases 13-CA-8497
and 13-CA-9566
August 1, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
Upon a charge filed on June 20, 1968, in Case
13-CA-8497, and upon a charge and an amended
charge filed on January 15 and February 6, 1970,
respectively, in Case 13-CA-9566, by International
Brotherhood of Electrical Workers, AFL-CIO, Local
Union 1859, hereinafter called the Union, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 13,
issued an order consolidating cases, complaint, and
notice of hearing on March 13, 1971, against Western
Electric Company, Hawthorne Works, hereinafter
called the Respondent, alleging that the Respondent
had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of
Section 8(a)(1) and (5) and Section 2(6) and (7) of the
National Labor Relations Act, as amended. Copies
of the charges, complaint, and notice of hearing
before a Trial Examiner were duly served on the
parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that, commencing on
or about June 3, 1968, and at various times
thereafter, the Respondent has interrogated employ-
ees regarding instances of their alleged misconduct,
that both the Union and a substantial number of the
aforementioned employees requested a union repre-
sentative to be present during these interviews, that
their requests were denied by the Respondent at a
time when the probability existed that disciplinary
action would be taken against these employees, that
disciplinary action was in fact taken, and that, by the
aforesaid conduct, the Respondent has interfered
with, restrained, and coerced its employees in the
exercise of their rights guaranteed in Section 7,
thereby violating Section 8(a)(1) of the Act, and has
failed and refused to recognize and bargain with the
Union in violation of Section 8(a)(5) of the Act. On
April 28, 1971, the Respondent filed an answer
admitting in part, and denying in part, the allegations
in the consolidated complaint, submitting an affirm-
ative defense, and requesting that the complaint be
dismissed.
Thereafter, on May 3, 1971, the Respondent filed a
Motion for Summary Judgment and for Transfer of
the Case to the National Labor Relations Board,
with affidavits in support thereof, moving that the
Board grant summary judgment in favor of the
Respondent and dismiss the consolidated complaint
on the basis of the affirmative defense set forth in its
answer. Subsequently, on May 6, 1971, the Board
issued an order transferring the proceeding to the
Board and a Notice To Show Cause why the
Respondent's Motion for Summary Judgment should
not be granted. The Respondent thereafter filed a
brief in support of its Motion and the General
Counsel filed a response to the Notice To Show
Cause.
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 proceeding to a three-
member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
As its affirmative defense, the Respondent asserts
that even if it denied the requests of the Union and
of bargaining unit employees to have a union
representative present during investigatory inter-
views, as alleged in the complaint, these facts do not,
in the circumstances of this case, give rise to a
violation of the Act, notwithstanding that disciplinar-
y action was later taken against a substantial number
of the employees interviewed. Specifically, in its
supporting affidavits, the Respondent avers: That
the question pertaining to the right of union
representation during investigatory interviews had
been submitted to final, and binding arbitration by
the parties on prior occasions; that the awards
rendered under these submissions denied employees
any right to representation during such interviews;
and that the collective-bargaining agreements negoti-
ated by the parties subsequent to those awards did
not change the procedure governing investigatory
interviews. The Respondent contends that the Board
should accord binding weight to this method of
dispute settlement, freely arrived at by the parties,
and dismiss the instant complaint.
The General Counsel in his statement in opposition
to the Respondent's motion does not directly contest
the accuracy of the Respondent's affidavits but
instead argues that their submission demonstrates
the need for an evidentiary hearing. Further, the
General Counsel asserts that the affidavits relate to a
key issue and that reliance on them would "introduce
into the Board's proceeding a concept alien to Anglo-
American jurisprudence-trial by affidavit."
Federal Rule of Civil Procedure 56(b) provides that
the defending party may move for summary judg-
198 NLRB No. 82
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment, in whole or in part, at any time with or without
supporting affidavits. Moreover, FRCP 56(e) pro-
vides in pertinent part that:
When a motion for summary judgment is made
and supported as provided in this rule, an adverse
party may not rest upon the mere allegations or
denials of his pleading, but his response, by
affidavits or as otherwise provided in this rule,
must set forth specific facts showing that there is
a genuine issue for trial. If he does not so respond,
summary judgment, if appropriate, shall be
entered against him.
The Respondent, by its motion, admits the essen-
tial factual allegations of the complaint. In its
supporting affidavits and accompanying exhibits, the
Respondent set forth additional facts which form the
basis of its affirmative defense. The General Counsel,
having failed to controvert these additional facts, has
not met the burden imposed upon an adverse party
by the aforementioned rule.' In these circumstances,
we are satisfied that there are no material facts in
dispute which require a hearing before a Trial
Examiner. We shall, accordingly, rule upon the
merits of the Respondent's Motion for Summary
Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is now, and has been at all times
material herein, a New York corporation with its
principal office in New York City and various other
plants or facilities at other locations in other States,
including a facility located at Cicero Avenue and
Cermak Road in Chicago and Cicero, Illinois, herein
called the Hawthorne Works, where it is, and has
been at all material times, engaged in the manufac-
ture of telephone equipment and related products.
During the past calendar or fiscal year, the
Respondent received a gross annual revenue from its
business operations in excess of $1,000,000, of which
in excess of $500,000 was derived from the shipment
of its goods from its Hawthorne Works directly to
points outside the State of Illinois.
We find, on the basis of the foregoing, that the
Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers,
AFL-CIO, Local Union 1859, is a labor organization
within the meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The complaint alleges in substance that the
Respondent violated the statutory rights of its
employees and unlawfully refused to bargain with
the Union as their designated representative by
denying employees the opportunity to have a union
representative present when they were interviewed by
the Respondent in the course of an investigation into
employee misconduct at a time when they could
reasonably anticipate that such interviews might lead
to action adverse to their employment relationship.
The Respondent admits that it refused to allow a
union representative to be present at these inter-
views. The Respondent contends, however, that its
refusal was not unlawful as the question concerning
the existence of these rights had been resolved in its
favor, on more than one occasion, by arbitration, a
means mutually agreed upon by the parties. The
Respondent also contends that the decisions of the
arbitrators are not repugnant to the purposes of the
Act, and that the parties' failure to modify these
rights during the two rounds of contract negotiations
which followed arbitration of the controversy is
further justification for giving binding weight to the
arbitral process and dismissing the complaint herein.
B. Background
The Respondent's affidavits and accompanying
exhibits establish, inter alia, that in August 1964,
grievances were submitted to arbitration on behalf of
two employees who were disciplined by the Respon-
dent following an investigation into their alleged
misconduct. In both cases the employees were
required to submit to investigatory interviews with-
out a union representative being present. In both
cases the Union grieved over the Respondent's
refusal to permit a union representative to be present
when these employees were being interviewed,
contending, inter alia, that by its refusal the Respon-
dent violated the terms of their collective-bargaining
agreement.
An arbitration board handed down its decision and
award pertaining to the first grievance on June 7,
1965. In its decision, the board distinguished between
conferences or interviews where disciplinary penal-
ties are to be announced and investigatory inter-
I Williams v. Baltimore & Ohio Railroad Company, 303 F.2d 323 (C.A 6)
WESTERN ELECTRIC COMPANY
views. The board held that employees did have a
right under the agreement to the presence of a union
representative at disciplinary conferences. With
respect to investigatory interviews, however, the
arbitrators held that no such right obtained under the
contract. Finding no reasonable distinction between
discussions concerning job performance and viola-
tions of company rules, they concluded that the
Respondent "clearly does have a right under the
Contract to conduct interviews or interrogations
without according the employee a right to have a
Union Representative present."
The second grievance was decided on February 8,
1966. In that case, an arbitration board held that, in
view of the earlier decision, the right to union
representation during investigatory interviews which
might result in disciplinary action "can only be
accomplished by negotiating a provision therefor
into the contract."
Thereafter, on January 20, 1967, while the parties
were engaged in bargaining over the terms of a new
agreement, the Union proposed incorporating such a,
provision. However, agreement was reached on the
new contract without amendment of the language
previously construed by the arbitrators.2
Approximately 1 year into the term of the 1967
agreement, the Respondent initiated an investigation
into gambling activities at its Hawthorne Works.
Following investigatory interviews, which union
representatives were not allowed to attend, the
Respondent took disciplinary action against a
substantial number of employees. Another investiga-
tion into employee misconduct occurred in 1969,
under similar circumstances and with similar results.
The refusal of the Respondent to permit union
representatives to be present at the interviews
conducted in the course of these investigations gave
rise to the filing of charges in the instant proceeding
and to the issuance of the consolidated complaint.
C. Concluding Findings
The question posed by the 8(a)(5) allegations of the
complaint herein, namely whether the Respondent
violated its obligation to bargain with an employee
representative by denying requests that a union
representative be present during investigatory inter-
views, has been considered and rejected by this
Board in a number of instances3 since our earlier
decision in the Texaco case.4 Accordingly, we find
that the Respondent did not violate Section 8(a)(5) of
the Act on the facts alleged in the complaint.
As to the 8(a)(1) allegations of the instant com-
2 The Union offered no proposal with respect to the matter during the
1969 round of negotiations
3 Chevron Oil Company, 168 NLRB 574, Jacobe-Pearson Ford Inc, 172
625
plaint, a majority of the Board is of the view that,
under the circumstances of this case, they should also
be dismissed. Members Penello and Kennedy base
their decision to dismiss upon reasons paralleling
those expressed in Member Kennedy's dissents in
Quality Manufacturing Company, 195 NLRB No. 42,
and Mobil Oil Corporation, 196 NLRB No. 144.
Chairman Miller joins them in dismissing here, but
for different reasons, as set forth below.
While we have held that an employee has a Section
7 right to engage in concerted activity, and thus to
request that he be accompanied by a union repre-
sentative in an interview which he reasonably
believes may lead to action adverse to him in his
employment relationship, that right is not an unqual-
ified one. Collective agreements may, and frequently
do, establish orderly channels for the exercise of
employee rights, including the specification of the
procedures for the manner in which employees and
the designees of their exclusive representative shall
act in concert for the duration of the governing
agreement. This Board has traditionally refrained
from attempting to regulate or interfere with such
arrangements, so long as they are consistent with the
statutory scheme, viewed as a whole.
Thus, we have refrained from finding any violation
of our Act when collective agreements excluded
union representatives at a particular step of the
grievance procedure, and substituted instead an all-
employer committee. Shell Oil Company, 93 NLRB
161. And we have for many years honored agree-
ments in which unions pledged, on behalf of all the
employees in the unit, not to strike. In such cases the
employees are bound not to exercise a significant
right to engage in a traditional kind of concerted
activity-the strike-but rather to channel their
concerted action into the orderly grievance and
arbitration machinery provided by the contract.
In the present case, it seems clear that the Union
and the Respondent have jointly considered, on
many occasions, the issue of whether union repre-
sentatives should be present in investigatory inter-
views of the type here under review. They failed to
agree on the question of whether their contractual
procedures and their modus vivendi provided for
representation at this juncture. Twice they submitted
the issue to arbitration, and twice the answer from
the arbitrators came back in the negative. Although
the Union, faced with an adverse determination as to
the matter, attempted in negotiations to persuade the
Respondent to adopt new procedures which would
have included new contract provisions providing for
representation in such interviews, no agreement to
NLRB No. 84, Texaco, Inc, Los Angeles Sales Terminal, 179 NLRB 976.
4 Texaco, Inc, Houston Producing Division, 168 NLRB 361, enforcement
denied 408 F 2d 142 (C.A. 5, 1969).
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
include such provisions emerged from the negotia-
tions.
Under these circumstances, it seems that the
parties must have understood that the former
procedures, as they had been interpreted by binding
arbitration, were intended to continue. And those
procedures, while they provided for union represen-
tation at other points, such as in the processing of
contractual grievances, did not include such repre-
sentation at this kind of investigatory interview.
There remains only the question of whether an
agreement which expressly, or through interpreta-
tion, operates to exclude union representation in
investigatory interviews, is repugnant to the statute.
Since, as indicated by the discussion, supra, we have
regularly permitted parties, by agreement, to deter-
mine how representation rights shall be channeled
during the life of a collective agreement, there would
seem to be no basis for reaching a contrary result
here. If the parties desire to change these channels in
future negotiations, they are free to do so. Thus, if
the employees should become convinced that repre-
sentation in the course of these interviews is
necessary as a part of their total protection from
what they may view as a harsh or unfair application
of the employer's disciplinary policies, they are free
to seek this additional safeguard, and to refuse to
authorize their agent to make an agreement which
does not include such safeguards.
The situation appears not to be significantly
different than that in Shell Oil Company, supra. In
that case, too, although there in express terms, the
contract excluded union representatives at a point
where, absent such agreement, we would doubtless
have held that the employees had a Section 7 right to
engage in concerted activity and demand that they
be represented by their chosen agent. But different
channels were, we held, controlling for the life of the
contract.
For these reasons, Chairman Miller joins his two
colleagues in dismissing the complaint herein in its
entirety.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. The Respondent, Western Electric Company,
Hawthorne Works, is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. International Brotherhood of Electrical Work-
ers, AFL-CIO, Local Union 1859, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. The Respondent, Western Electric Company,
Hawthorne Works, has not engaged in unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
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.