YRC Inc., d/b/a YRC Freight

National Labor Relations Board - Board Decisions

Apr 30, 2014

360 N.L.R.B. 744 (N.L.R.B. 2014)

744 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
360 NLRB No. 90
YRC Inc., d/b/a YRC Freight and Fred Rose. Case
13–CA–087525
April 30, 2014
DECISION AND ORDER
BY MEMBERS MISCIMARRA, JOHNSON,
AND SCHIFFER
On February 15, 2013, Administrative Law Judge Ar-
thur J. Amchan issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief, the
Respondent filed cross-exceptions and a supporting brief,
and both parties filed an answering brief and a reply
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions as
modified below and to adopt the recommended Order
dismissing the complaint.
We adopt the judge’s finding that the Respondent did
not violate Section 8(a)(1) of the Act by denying an em-
ployee’s request for a Weingarten1 representative and
then discontinuing the interview. We also affirm the
judge’s dismissal of a second Section 8(a)(1) allegation
concerning discipline the Respondent subsequently is-
sued the employee. For the reasons stated by the judge
and those set forth below, we find that the discipline was
lawfully imposed.
I. BACKGROUND
The Respondent operates a trucking company and has
a unionized facility in Bolingbrook, Illinois. On August
2, 2012,2 truckdriver Fred Rose reported to work at his
normal start time of 6 a.m. Around 7:47 a.m., the Re-
spondent’s dock supervisor, Vito Caponigro, saw Rose
begin to pull out of the yard. Rose’s expected departure
time was between 6:30 and 6:45 a.m. According to Ca-
ponigro, he had not decided whether to discipline Rose at
that time.
Caponigro approached Rose and asked why he was de-
layed. Rose asked whether Caponigro’s question was
investigatory. Caponigro said that he was asking Rose a
question. Rose stated that, if the question was investiga-
tory, he would like a union steward present. Caponigro
told Rose that no stewards were then available, but that
Rose could pick someone else. (The collective-
bargaining agreement allowed a coworker to serve as a
representative when a steward was unavailable.) Rose

1 NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975).
2 All dates are in 2012.
said that he did not know who was at work that day and
asked to see a list of employees scheduled to work. Ca-
ponigro responded that Rose would be receiving disci-
pline for misuse of company time. On August 8, Ca-
ponigro mailed Rose a warning letter. The letter stated
that Rose was being disciplined because, in Caponigro’s
words, “I asked you what were your delays. You could
offer no valid reason as to why you were delayed” (em-
phasis added).
The judge rejected both allegations asserted by the
General Counsel: that the Respondent violated Section
8(a)(1) by denying employee Rose’s request to partici-
pate in the investigative interview with a Weingarten
representative, and by issuing a warning letter regarding
Rose’s late departure from the yard. The judge credited
Caponigro’s testimony that he disciplined Rose for mis-
using company time, and not because Rose requested
Weingarten representation. Regarding the discipline
issue, the judge stated:
At the time Caponigro decided to discipline Rose
all he knew, from personal observation, was that
Rose was at least an hour late leaving Respondent’s
yard. The fact that Caponigro did not decide to dis-
cipline Rose until he asked for union representation
does not necessarily establish that Rose was disci-
plined for asserting his Weingarten rights. The fact
that B occurred after A does not necessarily mean
that B was the result of A, particularly when there is
an alternative explanation for B.
Were I to conclude that Respondent’s warning
letter was motivated by a desire to retaliate against
Rose for asking for union representation, I would
find a violation of the Act. However, such an infer-
ence is not warranted here. Rose was clearly an
hour late starting his route and given his failure to
offer Caponigro any explanation, I credit Ca-
ponigro’s testimony that he disciplined Rose for
misusing company time.
II. ANALYSIS
This case is governed by the Supreme Court’s
Weingarten decision and its progeny. In Weingarten, the
Supreme Court held that an employee has a right to re-
quest the attendance of a union representative in any in-
terview that he or she “reasonably fears may result in his
discipline.” Weingarten, 420 U.S. at 256. Two well-
established Weingarten principles are relevant in the in-
stant case.
First, the Act protects an employee from retaliation
motivated by an employer’s hostility towards an employ-
ee’s Weingarten request. Taracorp, Inc., 273 NLRB
221, 223 fn. 12 (1984) (“A make-whole remedy can be
YRC FREIGHT 745
appropriate in a Weingarten setting if, but only if, an
employee is discharged or disciplined for asserting the
right to representation.”) (citing Garment Workers
ILGWU v. Quality Mfg. Co., 420 U.S. 276 (1975)).
Second, an employer confronted with an employee re-
quest for Weingarten representation may respond by
choosing not to move forward with the investigative in-
terview. In such a situation, there are two consequences,
both permitted under Weingarten: (a) the employee is
deemed to be “relinquishing” any benefit associated with
explanations the employee might have conveyed during
the aborted interview; (b) the employer can make a disci-
plinary decision based on other information in its posses-
sion. Weingarten, 420 U.S. at 258–259.
These aspects of Weingarten received extended dis-
cussion in the Supreme Court’s decision:
[T]he employer [following a request for representation]
is free to carry on his inquiry without interviewing the
employee, and thus leave to the employee the choice
between having an interview unaccompanied by his
representative, or having no interview and forgoing any
benefits that might be derived from one.
. . . .
The employer may, if it wishes, advise the employee
that it will not proceed with the interview unless the
employee is willing to enter the interview unaccompa-
nied by his representative. The employee may then re-
frain from participating in the interview, thereby pro-
tecting his right to representation, but at the same time
relinquishing any benefit which might be derived from
the interview. The employer would then be free to act
on the basis of information obtained from other
sources.
. . . .
[I]f the employee has reasonable ground to fear that the
interview will adversely affect his continued employ-
ment, or even his working conditions, he may choose
to forego it unless he is afforded the safeguard of his
representative’s presence. He would then also forego
whatever benefit might come from the interview. And,
in that event, the employer would, of course, be free to
act on the basis of whatever information he had and
without such additional facts as might have been
gleaned through the interview.3
We agree with the judge that the Respondent did not
violate Section 8(a)(1) by refusing Rose’s request for

3 Weingarten, 420 U.S. at 258–259 (quoting Mobil Oil Corp., 196
NLRB 1052, 1052 (1972), and Quality Mfg. Co., 195 NLRB 197, 198–
199 (1972)) (quotation marks and citations omitted) (emphasis added).
union representation. As noted above, Weingarten ex-
pressly provides that, when an employee requests
Weingarten representation, the employer may choose not
to move forward with the interview. See Weingarten,
supra, 420 U.S. at 258–259. Therefore, it did not violate
Section 8(a)(1) for Caponigro to elect not to conduct the
investigatory interview after Rose invoked his
Weingarten rights.
The remaining issue concerns whether the Respond-
ent’s warning letter constituted unlawful retaliation mo-
tivated by Rose’s Weingarten request for representation.
The General Counsel argues that Caponigro had not de-
cided to discipline Rose at the time Caponigro asked
Rose to explain why he had been delayed; the
Weingarten request was immediately followed by Ca-
ponigro’s announcement that Rose would be disciplined;
and the warning letter stated that it was being issued be-
cause Rose—after being asked to explain his delays—
could offer “no valid reason.” Therefore, the General
Counsel essentially argues that the warning letter was
unlawful because Rose’s Weingarten request was the
“but for” cause of his discipline: Rose received the
warning letter based on his failure to explain his delay
leaving the yard, and the lack of an explanation was at-
tributable to Rose’s request for Weingarten representa-
tion (since Caponigro, after Rose made his Weingarten
request, abandoned any further investigation and an-
nounced that Rose would be disciplined).
The judge correctly recognized that Weingarten gives
employees a right to union representation during investi-
gative interviews, but it does not afford immunity for
unexplained misconduct. Under Weingarten, Rose had a
right to request the presence of a Weingarten representa-
tive when Caponigro asked Rose about the delay leaving
the yard.4 However, Caponigro—having already ob-
served Rose leaving at least one hour late—was permit-
ted under Weingarten to abandon his effort to obtain an
explanation from Rose. And Caponigro was “free to act
on the basis of whatever information he had and without
such additional facts as might have been gleaned
through the interview.” Weingarten, 420 U.S. at 259

4 Although the judge properly determined that Rose’s warning letter
was not a violation of Sec. 8(a)(1), we disagree with his finding that
Rose lacked a reasonable belief that Caponigro’s inquiry could result in
discipline. (This finding, if true, would mean that Rose lacked a right
to request Weingarten representation, since Weingarten provides such a
right only when an investigative interview could reasonably result in
potential discipline.) The judge reasoned that, if Rose truly had a valid
reason for his delay, he could not have reasonably feared discipline.
However, Rose was at least an hour late leaving the yard, and his dock
supervisor asked why. In this situation, Rose could reasonably fear that
his tardy departure might result in discipline, particularly if he lacked
the assistance of a Weingarten representative during relevant question-
ing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD746
(quoting Quality Mfg. Co., 195 NLRB 197, 199 (1972))
(emphasis added).
Weingarten does not require employers to conduct or
continue an investigative interview, nor does it require
employers to undertake other investigative steps before
imposing discipline. Also, nothing in Weingarten pre-
vents an employee from providing an exculpatory expla-
nation in some manner not involving a back-and-forth
oral exchange of questions and answers.5 However, the
Supreme Court’s decision in Weingarten states—three
times—that invoking Weingarten rights may lawfully
result in employees being disciplined due to a failure to
convey relevant explanations to the employer. Thus,
Rose’s assertion of his Weingarten rights did not immun-
ize him from the consequences of his unexplained late
departure from the yard.
As the judge correctly observed, although Rose was
disciplined after he invoked his Weingarten rights, it
does not follow that he was disciplined because he in-
voked those rights. The judge specifically credited Ca-
ponigro’s testimony that he disciplined Rose for misus-
ing company time, and not based on hostility towards
Rose’s request for Weingarten representation. This cred-
ibility determination, together with the record as a whole,
persuade us that the record is not sufficient to establish a
violation of the Act on these facts.6
We agree with our dissenting colleague that, if an em-
ployee invokes his or her right to have Weingarten repre-
sentation, the employee may not lawfully be subjected to
retaliation for making such a request. However, we do
not agree that the timing of the disciplinary decision—
i.e., the fact that it occurred after Rose requested
Weingarten representation—means that Rose’s
Weingarten request must have been a motivating factor
in his discipline. In this regard, our dissenting colleague
reasons that “[n]othing else occurred to account for Ca-
ponigro’s abrupt decision to impose discipline.” Our

5 In the instant case, for example, Weingarten only required Ca-
ponigro to provide representation, at Rose’s request, had Caponigro
persisted in asking questions about Rose’s delay leaving the yard. Yet
Rose could have volunteered information to Caponigro or others re-
garding any reason(s) for his delay in ways that would not have forfeit-
ed Weingarten rights. Rose could have timely submitted a written
explanation (the record reveals that Rose described the reasons for his
delay in an “August 12 letter”). He also could have asked coemployee
or manager witnesses to provide exculpatory information to Caponigro
(the record reveals that, according to Rose, a dispatcher, Chris Zurales,
had relevant information, and “another manager” had instructed Rose to
switch trailers, which accounted, in part, for his delay). While Ca-
ponigro had previously indicated an intent to issue discipline for this
incident, we cannot assume that he would have ignored a timely, valid
explanation.
6 While not conclusive, the judge’s credibility determination is enti-
tled to some weight in the disposition of this case.
colleague also relies on Rose’s discipline letter because it
cites his inability to offer a “valid reason” for his delay.
As noted previously, we believe these points are con-
trolled by the parameters set forth very explicitly in the
Supreme Court’s Weingarten decision. The Supreme
Court indicated that the assertion of Weingarten rights
does not immunize employees from potential discipline
for whatever alleged misconduct is under investigation,
and the Supreme Court held that a right to Weingarten
representation arises only when a matter is already at the
point where the employee reasonably fears discipline.
Here, Caponigro was responsible for determining wheth-
er Rose should be disciplined for leaving the yard late.
After Rose invoked his Weingarten rights, Caponigro
still had to decide whether discipline was warranted.7 At
that point, as the Supreme Court indicated in Weingarten,
Caponigro could deny the request and impose discipline,
“act[ing] on the basis of whatever information he had
and without such additional facts as might have been
gleaned through the interview.” 420 U.S. at 259. We do
not believe one can reasonably draw an inference of un-
lawful retaliation to the extent that an employer proceeds
in the precise manner described as permissible in
Weingarten itself. In these circumstances, neither the
timing of the discipline decision nor Rose’s reliance on
the absence of an explanation reasonably supports a find-
ing of retaliatory motivation. To draw such an inference
without other evidence of a retaliatory motive would
depart from the Supreme Court’s decision in Weingarten.
That is a step we may not take.
We emphasize that, if an employee invokes his or her
Weingarten rights, Weingarten does not give immunity
to every employer that moves forward with discipline.
The General Counsel still may show that the decision to
do so was unlawfully motivated. In this case, however,
Caponigro personally observed Rose engage in a type of
conduct (leaving the yard more than one hour late) that,
if unexplained, would reasonably lead to a conclusion
that discipline was warranted. The nature and magnitude
of the discipline (issuance of a warning) does not reason-
ably suggest that Rose received a greater penalty than
was warranted by the misconduct. There is no other evi-
dence that the Respondent exhibited hostility towards
Weingarten representation. And the judge had the op-
portunity to assess the credibility of witnesses, including
Caponigro, and specifically credited Caponigro’s testi-
mony that he issued the warning to Rose for misusing

7 Thus, the record does not show that Caponigro had decided not to
discipline Rose at the time he approached him, and then changed his
mind only after Rose asked for union representation. If this were the
case, there would have been no need for Caponigro to question Rose
about his delay.
YRC FREIGHT 747
company time, not in retaliation for invoking his
Weingarten rights. On this record, therefore, we find that
the General Counsel did not meet his burden of proving
unlawful retaliation.
In sum, the judge found that Caponigro decided to give
Rose an opportunity to explain his delayed departure
before making a decision to discipline Rose. Recogniz-
ing the possibility of discipline for this delay, Rose de-
clined to give an explanation without union representa-
tion of his choice. Caponigro then exercised his right not
to conduct an interview, and—absent other evidence of
retaliatory motivation—he had the right to warn Rose for
conduct that, absent explanation, warranted discipline.
Thus, we affirm the judge’s finding that the Respondent
did not violate Section 8(a)(1) by issuing Rose the Au-
gust 8 warning letter.8
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
MEMBER SCHIFFER, dissenting in part.
As the Board reaffirms today, it is well established that
an employee may not be disciplined for invoking his
Weingarten right1 to a representative at an investigatory
interview. See, e.g., Amoco Oil Co., 238 NLRB 551, 552
(1978). Contrary to my colleagues’ view, the record here
demonstrates that employee Fred Rose was indeed disci-
plined not merely after invoking his Weingarten right,
but because he did so.2 There is no good basis to con-
clude that Rose would have been disciplined even if he
had not asked for a representative.
I.
The essential facts are undisputed: Respondent’s dock
supervisor, Vito Caponigro, observed Fred Rose pulling
his assigned truck out of the Respondent’s yard approxi-
mately 1 hour later than his expected departure time.
Caponigro approached Rose and asked why he was de-
layed. Rose asked whether Caponigro’s question was
investigatory. Caponigro said that he was asking Rose a
question. Rose replied that, if the question was investi-
gatory, he would like a union steward present. Ca-

8 We correct the judge’s erroneous finding that the General Counsel
failed to allege until the day of the hearing that the Respondent’s dis-
patcher, Chris Zurales, was an agent of the Respondent. A week before
the hearing opened, the General Counsel submitted a notice of intent to
amend the complaint at the hearing to allege Zurales as an agent. We
find it unnecessary to decide Zurales’ status because it is not material to
any issue in the case.
1 NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975).
2 I agree with my colleagues that the Respondent did not violate Sec.
8(a)(1) by refusing employee Rose’s request for union representation,
inasmuch as the Respondent discontinued the investigatory interview
when Rose invoked his Weingarten right.
ponigro initially told Rose that no stewards were then
available and that Rose could pick someone else. But
before Rose could select an alternative representative,
Caponigro not only terminated the interview abruptly,
but also immediately informed Rose that he would be
disciplined for misusing company time.
The Respondent then mailed Rose a warning letter.
The letter cited Caponigro’s observation of Rose’s belat-
ed departure from the yard and tellingly asserted that
when asked by Caponigro, Rose “could offer no valid
reason as to why [he was] delayed.” Rose, however, had
never been presented with a fair chance to do so. It is
true that he did not offer a justification for his delay at
the interview, but that was because he had requested a
Weingarten representative and virtually as soon as he
did, Caponigro announced that he would be disciplined.3
II.
Relying on the Supreme Court’s discussion in
Weingarten, my colleagues present this as a case where
an employee, by declining to participate in an interview
without a representative, has deliberately “relinquish[ed]
any benefit which might be derived from the interview,”
i.e., the chance to provide an excuse. Weingarten, 420
U.S. at 258. But that is not a fair characterization of
what happened here. Supervisor Caponigro did not (in
the Supreme Court’s words) “advise the employee that
[he would] not proceed with the interview unless the
employee [was] willing to enter the interview unaccom-
panied by his representative.” Id. Instead, after telling
Rose that he could pick a representative, Caponigro in-
stantly changed course, ending the interview and an-
nouncing that Rose would be disciplined. This cannot be
what the Weingarten Court had in mind when it ex-
plained how employers may proceed in this setting.
The inescapable inference here, rather, is that a peeved
Caponigro reacted to Rose’s invocation of his
Weingarten right by disciplining him. The Respondent’s
warning letter to Rose confirms as much. The letter cites
Caponigro’s observation of Rose’s belated departure
from the yard, which certainly could be a legitimate basis
for discipline, considered alone. But the letter also relies
on the assertion that Caponigro “could offer no valid
reason as to why [he was] delayed”—although the Re-
spondent knew full well that such an explanation was
lacking because Rose requested a Weingarten representa-
tive, which prompted Caponigro to end the interview and

3 My colleagues neglect this fact in suggesting (see fn. 5, supra) that
Rose could have presented exculpatory information after Caponigro
terminated the interview. From the perspective of a reasonable em-
ployee in Rose’s position, discipline was clearly a foregone conclusion
at that point.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD748
impose discipline. According to the record evidence,
Caponigro undisputedly did not intend to discipline Rose
based solely on the observation that Rose was late leav-
ing the yard.4 The only intervening event between Ca-
ponigro’s asking Rose why he was delayed in leaving the
yard and telling Rose he would be disciplined, was that
Rose invoked his Weingarten right. Nothing else oc-
curred to account for Caponigro’s abrupt decision to im-
pose discipline. In short, the record establishes that the
Respondent disciplined Rose, at least in part, because
instead of offering an explanation, he asked for a
Weingarten representative.
III.
In cases like this one, the Board applies the analytical
framework established in Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982). E.g., Barnard College, 340 NLRB
934, 936 (2003). Accordingly, the relevant questions are
whether the General Counsel established that Rose’s
invocation of his Weingarten rights was a motivating
factor in the Respondent’s issuance of the warning and, if
so, whether the Respondent established as an affirmative
defense that it would have disciplined Rose even in the
absence of that protected conduct. The circumstances
here demonstrate that Rose’s invocation of his
Weingarten right was at least a motivating factor in the
Respondent’s decision to discipline him. And contrary to
the judge, and to the implicit conclusion of my col-
leagues, the Respondent did not establish that it would
have disciplined Rose for his late departure alone.
Under Wright Line, an employer cannot simply present
a legitimate reason for its action. Igramo Enterprise, 351
NLRB 1337, 1338 fn. 10 (2007), rev. denied 310 Fed.
Appx. 452 (2d Cir. 2009). “Nor is ‘[a] judge’s personal
belief that the employer’s legitimate reason was suffi-
cient to warrant the action taken . . . a substitute for evi-
dence that the employer would have relied on this rea-
son’” in the absence of protected activity. Id. (quoting
Hicks Oils & Hicksgas, 293 NLRB 84, 85 (1989), enfd.
942 F.2d 1140 (7th Cir. 1991)). Here, the Respondent
offered no evidence, other than Caponigro’s conclusory
testimony, to support a finding that it would have disci-
plined Rose absent his request for a Weingarten repre-
sentative. Although the judge said he “credit[ed]” Ca-
ponigro’s testimony that he disciplined Rose for misus-
ing company time, the judge’s stated basis for doing so
was Rose’s tardiness in leaving the yard and his failure to
explain why. That basis is infirm. As explained, Rose’s

4 I agree with my colleagues that the record does not show that Ca-
ponigro previously had decided not to discipline Rose (see fn. 7, supra),
but the record is clear that the converse is equally true.
decision not to answer Caponigro’s question without a
union representative present was statutorily protected,
and thus was not a permissible ground for discipline. I
therefore would reject the judge’s finding that Ca-
ponigro’s testimony suffices to sustain the Respondent’s
Wright Line defense.
Despite any implication to the contrary in my col-
leagues’ opinion, this result does not require disturbing
any credibility resolution that warrants our deference.
As stated, the Respondent has consistently offered
Rose’s failure to explain his tardiness as part of the
grounds for imposing discipline. Even if Caponigro had
testified that he was not motivated, even in part, by
Rose’s failure to offer an explanation, the Board’s tradi-
tional policy of deference to a judge’s credibility resolu-
tions would not require that we defer to the judge’s eval-
uation of Caponigro’s self-serving, conclusory testimony
in this instance. Rather, where, as here, the ultimate is-
sue is a respondent’s motivation for disciplining an em-
ployee, we consider all the record evidence taken as a
whole.5
For all of those reasons, I would find that the Re-
spondent violated Section 8(a)(1) of the Act by its Au-
gust 8 warning letter to Rose.
Christina B. Hill, Esq., for the General Counsel.
Jeffrey R. Vlasek and Todd A. Dawson, Esqs. (Baker Hostetler,
Cleveland, Ohio), for the Respondent.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Chicago, Illinois, on January 17, 2012. Fred Rose,
the Charging Party, filed the charge on August 17, 2012, and
the General Counsel issued the complaint on October 24, 2012.
The General Counsel alleges that Respondent, YRC Freight,
by its dock supervisor, Vito Caponigro, violated Section 8(a)(1)
of the National Labor Relations Act (the Act) by denying the
request of the Charging Party, Fred Rose, for a union repre-
sentative during an interview on August 2, 2012. The General
Counsel also alleges that Respondent violated Section 8(a)(1)
in issuing Rose a warning letter because of Rose’s refusal to
answer questions in the absence of a union representative.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following

5 See Desert Toyota, 346 NLRB 132, 135 (2005), rev. denied, sub
nom. mem. Machinists District Lodge 845 v. NLRB, 265 Fed. Appx.
547 (9th Cir. 2008); Rock Tenn Co., 234 NLRB 823, 824 fn. 5 (1978)
(citing Pacific Telephone & Telegraph Co., 107 NLRB 1547, 1551
(1954)) (“The testimony of witnesses as to their conclusions, opinions,
or motivations does not constitute factual matter and thus stands apart
from the direct credibility of witnesses.”).
YRC FREIGHT 749
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, is a trucking company. It has a
facility in Bolingbrook, Illinois, where it annually derives gross
revenues in excess of $50,000 from the transportation of freight
in interstate commerce. Respondent admits, and I find, that it is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and that Local 179 of the In-
ternational Brotherhood of Teamsters, which represents em-
ployees at the Bolingbrook facility, is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At about 7:47 a.m. on August 2, 2012, Respondent’s dock
supervisor, Vito Caponigro, saw the Charging Party, Fred Rose,
in a tractor trailer, beginning to pull out of Respondent’s yard.
Rose had reported to work that day at his normal starting time
of 6 a.m. Normally, Rose would be expected to leave Re-
spondent’s yard to drive his route and make freight deliveries
by 6:30 to 6:45 a.m.
There is little, if any, dispute as to what occurred and what
was said. Caponigro asked Rose why he was delayed leaving
the yard. Rose replied by asking if Caponigro was conducting
an investigation. Caponigro responded that he was asking Rose
a question. Rose then stated that if Caponigro was conducting
an investigation, he wanted a union steward present.
Caponigro told Rose there was no union steward present at
the yard and asked him who he wanted to represent him in-
stead. Rose asked to see a list of employees who were at the
yard. Caponigro may have asked Rose again who he wanted to
represent him, but then told Rose without further discussion
that he was issuing Rose a disciplinary warning for misuse of
company time (Tr. 34–35, 65–66). Caponigro did not ask Rose
any more questions about why he was late leaving the yard
after Rose requested union representation.
About a half-hour after this conversation, Caponigro emailed
other management officials about his encounter with Rose (GC
Exh. 2). On August 8, Caponigro mailed Rose a letter stating
that he was being warned regarding misusing company time on
the morning of August 2 (Jt. Exh. 2). In that letter Caponigro
stated, “I asked you what were your delays. You could offer no
valid reason as to why you were delayed.”
Rose may have mailed Respondent a rebuttal letter on Au-
gust 12, which may have been received by Respondent on Au-
gust 17, giving his reasons for his delay in leaving the yard on
August 2 (GC Exh. 5). Caponigro and Respondent’s terminal
manager, John Ralston, testified they had not seen this letter
prior to the January 17, 2013 hearing in this matter. Ralston
testified the letter is not in Rose’s personnel file. In any event,
this letter is completely irrelevant to this case since it could not
have been received until after Respondent issued Rose the
warning letter.
Rose also filed a grievance on August 13, in which he al-
leged that Respondent violated the Union’s collective-
bargaining agreement, but did not provide any explanation for
his delay in leaving the yard on August 2. Due to the fact that
the discipline did not rise to the level of a suspension it was not
subject to the grievance procedure in the collective-bargaining
agreement.
ANALYSIS
The term “Weingarten rights” refers to a decision of the
United States Supreme Court in NLRB v. J. Weingarten, 420
US 251 (1975), in which the Court held that the Board’s con-
struction of Section 7 of the Act, with regard to interviews with
potentially disciplinary consequences, was permissible. That
construction was that Section 7 creates a statutory right to re-
fuse to submit without union representation to an interview
which the employee reasonably fears may result in the employ-
ee’s discipline. The court noted that the Board’s construction
in Weingarten emanated from several prior cases in which the
Board shaped the contours and limits of this statutory right.
The Court quoted extensively from the Board’s opinions in
Quality Mfg. Co., 195 NLRB 197 (1972), and Mobil Oil Corp.,
196 NLRB 1052 (1972). Thus the decision makes it clear that
the parameters of the Weingarten right are those set forth by the
Board. First the Board found it was a serious violation of the
Act to deny an employee’s request for union representation and
compel the employee to appear unassisted at an interview
which may put his job security in jeopardy (emphasis added).
Second, the right arises only where the employee requests
union representation. Third, the right is limited to situations
where the employee reasonably believes the investigation will
result in disciplinary action. The Board noted that the rule did
not apply to run of the mill shop floor conversations such as
those in which the employee is given instructions or training or
needed corrections of work techniques.
Fourth, the Board stated that the exercise may not interfere
with legitimate employer prerogatives. Thus, the employer
need not justify refusing to grant the employee union represen-
tation, but rather is entitled to conduct an inquiry into the em-
ployee’s conduct without the employee’s participation. The
employer is then free to act on the basis of information derived
from other sources. Fifth and finally, the Board noted that the
employer has no duty to bargain with the union representative.
It is free to insist that it is only interested in hearing the em-
ployee’s own account of the matter under investigation.
It is condition #4 that is most relevant to the instant case.
Respondent, by Vito Caponigro, was not required to accord
Fred Rose union representation. Caponigro was well within his
rights in disciplining Rose on the basis on the information he
had on the morning of August 2. The Board in Mobil Oil, stat-
ed:
The employer may, if it wishes, advise the employee that it
will not proceed with the interview unless the employee is
willing to enter the interview unaccompanied by his repre-
sentative. The employee may then refrain from participating
in the interview, thereby protecting his right to representation,
but at the same time relinquishing any benefit which might be
derived from the interview. The employer would then be free
to act on the basis of information obtained from other sources.
At the time Caponigro decided to discipline Rose all he
knew, from personal observation, was that Rose was at least an
hour late leaving Respondent’s yard. The fact that Caponigro
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD750
did not decide to discipline Rose until he asked for union repre-
sentation does not necessarily establish that Rose was disci-
plined for asserting his Weingarten rights. The fact that B oc-
curred after A does not necessarily mean that B was the result
of A, particularly when there is an alternative explanation for
B.
Were I to conclude that Respondent’s warning letter was mo-
tivated by a desire to retaliate against Rose for asking for union
representation, I would find a violation of the Act. However,
such an inference is not warranted here. Rose was clearly an
hour late starting his route and given his failure to offer Ca-
ponigro any explanation, I credit Caponigro’s testimony that he
disciplined Rose for misusing company time.1
The General Counsel’s brief suggests at pages 6–7 that Ca-
ponigro knew the reasons for Rose’s delay when he encoun-
tered Rose at 7:47 a.m. This, the General Counsel suggests,
establishes that Rose was disciplined for insisting on his
Weingarten rights. I reject any such argument for the following
reasons: first, I decline to credit Rose’s testimony as to the
reasons for his delay in the view of Caponigro’s testimony at
Tr. 68–69 that he had personal knowledge that at least one of
the reasons belatedly offered by Rose was false. Caponigro
testified that the load that Rose was to deliver was ready for
shipment on schedule.
The General Counsel relies on Rose’s uncontradicted testi-
mony about conversations with Respondent’s dispatcher, Chris
Zurales in suggesting that Caponigro knew that Rose had a
legitimate excuse for leaving Respondent’s yard an hour late. I
find it unfair for the General Counsel to rely on testimony re-

1 Assuming the General Counsel made an initial showing of a statu-
tory violation, I find that Respondent met its burden of proving a non-
discriminatory motive for the warning.
garding Rose’s conversations with Zurales given that she was
not alleged to be an agent of Respondent until the day of trial.
Moreover, there is no evidence that Zurales advised Caponigro
of whatever transpired between her and Rose on the morning of
August 2.
I also conclude that the General Counsel has not established
that Rose reasonably believed that Caponigro’s inquiry would
result in disciplinary action. If the explanations Rose gave at
trial and in his August 12 letter for the delay on August 2 are
accurate, there is no basis for concluding that Rose reasonably
feared discipline had he told Caponigro that he was late leaving
the yard for the reasons he proffered belatedly.2
CONCLUSION OF LAW
Respondent did not violate the Act either in refusing to pro-
vide Fred Rose with union representation on August 2, 2012, or
in issuing him a disciplinary warning letter.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3
ORDER
The complaint is dismissed.

2 At trial and in his August 12 letter, Rose stated that he was leaving
the yard late because his load wasn’t ready on time, that he had been
told by another manager to switch trailers due to the lack of air condi-
tioning in the first trailer and that he had to get window washer fluid in
the second trailer.
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.