Alltel Pennsylvania, Inc.

National Labor Relations Board - Board Decisions

Apr 10, 1995

316 N.L.R.B. 1155 (N.L.R.B. 1995)

1155
316 NLRB No. 178
ALLTEL PENNSYLVANIA, INC.
1 The Charging Party has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
No exceptions were filed to the judge’s finding that the Respond-
ent violated Sec. 8(a)(3) and (1) of the Act by issuing a written dis-
ciplinary citation to Union Steward Jeffrey Potts for ‘‘unacceptable
behavior.’’
2 All dates are in 1993 unless otherwise indicated.
Alltel Pennsylvania, Inc. and International Brother-
hood of Electrical Workers, Local Union 2089,
AFL–CIO. Case 6–CA–26073
April 10, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On November 10, 1994, Administrative Law Judge
Robert T. Wallace issued the attached decision. The
Respondent and the Charging Party filed exceptions
and supporting briefs, and the Respondent filed an an-
swering 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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The November 23 Interview
On November 23, 1993,2 unit employee Robert
Crytzer was told by Plant Manager Gary Ross to report
to the front office. Unlike occasions in the past, on this
day Ross said nothing about any forthcoming dis-
cipline. When Crytzer arrived at the front office, he
was met by the chief executive of the plant, Vice
President Clark Hoffman, and an official in charge of
plant security and investigations, John Cupples. The
subject of the meeting was a suspected false claim for
a $95.47 hotel bill on a travel voucher submitted by
Crytzer.
Crytzer testified to a version of this meeting that dif-
fers significantly from that related by Hoffman and
Cupples. According to Crytzer, Hoffman walked into
the meeting, pointed a finger at Crytzer, and stated that
‘‘what you did was wrong . . . I am going to pros-
ecute you . . . I don’t care if you have a union rep-
resentative or a lawyer sitting beside you . . . we’re
going through with this.’’ Crytzer testified that Hoff-
man then left the room and that Crytzer turned to
Cupples and said, ‘‘John, what would you do in my
place? Would you get a union rep or a lawyer?’’
Crytzer states that Cupples answered, ‘‘Well, Clark’s a
fair guy. Just tell us what happened.’’ Asserting that
he didn’t want to make Hoffman any madder than he
was, Crytzer told Cupples what had happened. The
meeting ended with Crytzer signing a 12-line typed
statement wherein he admitted misappropriating the
amount in question. Crytzer was subsequently fired for
submitting a false travel voucher.
Hoffman testified that he opened the November 23
meeting with Crytzer by stating that Crytzer had been
called to discuss a very serious matter and that Crytzer
had the right to union representation at the meeting.
Hoffman testified that Crytzer did not ask for union
representation at that time or at any time during the
meeting. Cupples testified that he repeated to Crytzer
that Crytzer was entitled to have a union representative
present and additionally told him that the meeting
would be delayed until Crytzer could obtain such rep-
resentation if it was desired. Cupples testified that
Crytzer indicated that he did not feel the need to have
a representative with him during the meeting. Hoffman
and Cupples each corroborated the other’s testimony.
The judge found that Crytzer’s claim that he asked
Cupples whether he should ‘‘get a union rep or a law-
yer’’ was undenied, and he credited it. Based on
Crytzer’s question to Cupples, the judge found that the
Respondent had three options: (1) grant Crytzer’s re-
quest, (2) give him the option of either continuing the
hearing unrepresented or foregoing it, or (3) deny the
request and terminate the interview. Because the Re-
spondent continued the interview without advising
Crytzer of these options, the judge found a violation
of Section 8(a)(1).
Our examination of the record reveals that the state-
ment credited by the judge was not undenied. Rather,
the Respondent recalled Cupples at the end of the trial
and specifically asked him whether ‘‘[a]t any time dur-
ing that day, did Mr. Crytzer inquire of you as to your
advice as to whether he should have union representa-
tion?’’ Cupples answered that ‘‘[h]e did not.’’
The judge made no other findings as to the credibil-
ity of the witnesses with respect to their differing ver-
sions of the November 23 interview. In light of the
fact that the critical testimony which the judge appar-
ently credited because it was uncontradicted is in fact
contradicted, we remand this portion of the case to the
judge for credibility findings and a determination
based on those findings as to whether the Respondent
violated Section 8(a)(1) as alleged.
The Information Request
On November 24, Union President Larry Atkins
filed a grievance on Crytzer’s behalf alleging that ter-
mination was too severe for the infraction and seeking
a 3-day suspension and warning instead. He also asked
1156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Member Cohen does not agree that the Respondent violated Sec.
8(a)(5) in this respect. The Respondent told the Union that it was
giving a copy of the statement to Crytzer, and that Crytzer could
supply it to the Union. Crytzer promptly made it available to the
Union. In these circumstances, Member Cohen agrees with the judge
that there was no real impact on the collective-bargaining process.
He distinguishes New York Times, supra, on the basis that, in the
instant case, the Respondent told the Union that it could get the in-
formation from the employee, and in fact the Union promptly re-
ceived the information in this fashion.
4 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
Hoffman at that time for a copy of the statement that
Crytzer had signed at the interview on November 23.
Hoffman provided Crytzer a copy of his November 23
statement on December 8, and Crytzer provided a copy
of it to the Union. Hoffman testified that he told At-
kins that he would give a copy of the statement to
Crytzer, and, since it was of a ‘‘personal nature,’’
Crytzer could supply it to the Union. Hoffman also
testified that he was not willing to supply Atkins di-
rectly with a copy of the statement.
The judge found that although the Union had a right
to receive the statement directly from the Respondent,
the evidence showed that Crytzer promptly made it
available to the Union and that absent a pattern of by-
passing or otherwise denigrating the Union, any harm
done was de minimis, and therefore no violation of
Section 8(a)(5) and (1) had occurred. We disagree.
As noted by the judge, the Board held in The New
York Times Co., 265 NLRB 353 (1982), that ‘‘[t]he
fact that employees may have the information and may
be or are willing to give it to the union does not re-
lieve an employer of its obligation under Section
8(a)(5) of the Act.’’ Id. No special circumstances are
present here that would require a different result. Ac-
cordingly, we find that the Respondent violated Sec-
tion 8(a)(5) and (1) as alleged by refusing to give a
copy of Crytzer’s November 23 statement directly to
the Union.3
ORDER
The National Labor Relations Board orders that the
Respondent, Alltel Pennsylvania, Inc., Meadville,
Pennsylvania, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Issuing disciplinary warnings to employees for
engaging in protected union activity.
(b) Refusing to furnish necessary information for
collective bargaining to the Union.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Remove from its files any reference to the un-
lawful disciplinary warning given to Jeffrey Potts on
August 20, 1993, and notify him in writing that this
has been done and that the warning will not be used
against him in any way.
(b) Furnish to the Union a copy of the November
23, 1993 statement signed by Robert Crytzer which the
Union requested on November 24, 1993.
(c) Post at its facility in Meadville, Pennsylvania,
copies of the attached notice marked ‘‘Appendix.’’4
Copies of the notice, on forms provided by the Re-
gional Director for Region 6, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(d) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the issue of whether
the Respondent unlawfully denied Robert Crytzer the
right to union representation is remanded to the admin-
istrative law judge for the purpose of making credibil-
ity determinations, and that he shall prepare and serve
on the parties a supplemental decision setting forth his
credibility resolutions, findings of fact, conclusions of
law, and recommendations to the Board based on those
determinations. Following service of the supplemental
decision on the parties, the provisions of Section
102.46 of the Board’s Rules and Regulations shall be
applicable.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT issue disciplinary warnings to em-
ployees for engaging in protected union activity.
WE WILL NOT refuse to furnish necessary informa-
tion for collective bargaining to the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL notify Jeffrey Potts that we have removed
from our files any reference to the unlawful discipli-
1157ALLTEL PENNSYLVANIA, INC.
1 All dates are in 1993 unless otherwise indicated.
2 Potts, supported by Adkins, claims to have addressed both Barton
and Wood, saying: ‘‘You’re tough sons of bitches to try to talk to.’’
I have credited Barton in this matter finding his account more prob-
able in the circumstances.
nary warning given to him on August 20, 1993, and
that the warning will not be used against him in any
way.
WE WILL furnish to the Union a copy of the Novem-
ber 23, 1993 statement signed by Robert Crytzer which
the Union requested on November 24, 1993.
ALLTEL PENNSYLVANIA, INC.
Leone P. Paradise, Esq., for the General Counsel.
William C. Moul and Bonnie I. O’Neil, Esqs. (Thompson,
Hine & Flory), of Columbus, Ohio, for the Respondent.
Jonathan Walters and Deanna L. Forbush, Esqs. (Markowitz
& Richman), of Philadelphia, Pennsylvania, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
ROBERT T. WALLACE, Administrative Law Judge. This
case was tried in Meadville, Pennsylvania, on May 19, 1994.
The charge was filed December 27, 1993,1 and the complaint
was issued February 28, 1994.
At issue is whether Respondent violated Section 8(a)(1) of
the National Labor Relations Act by denying employee Rob-
ert Crytzer’s request for union representation at an investiga-
tory interview, Section 8(a)(1) and (3) by issuing a discipli-
nary citation to employee Jeffrey Potts, and Section 8(a)(1)
and (5) by failing to provide information relative to the proc-
essing of a grievance filed by Crytzer.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel, the Charging Party, and Re-
spondent, I make the following
FINDINGS OF FACT/ANALYSIS
I. JURISDICTION
Respondent, a corporation, installs and repairs telephone
equipment from a facility in Meadville, where it annually
purchases and receives goods valued in excess of $10,000 di-
rectly from points outside the Commonwealth of Pennsyl-
vania. Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Discipline of Potts
On or about August 13, the acting shop steward for Re-
spondent’s cable department (Jeffrey Potts) advised the su-
pervisor for that Department (Larry Barton) that a memoran-
dum issued by the latter concerning overtime policy was not
in accord with the applicable collective-bargaining agree-
ment. Barton said he’d talk to his own supervisor and then
get back to him. He did not do so.
Near quitting time on August 18 and at the request of a
concerned employee (Donald Trudell), Potts went to a meet-
ing of employees called by Barton. In response to Barton’s
question as to why he was there, Potts stated that an em-
ployee had asked for representation; and when Barton asked
‘‘which one?’’ Trudell spoke up and said he had asked for
it. Irritated, Barton told Potts there was no need for his pres-
ence, and that he didn’t want him there because the meeting
was for assigning overtime and did not involve discipline.
Barton then proceeded to conduct the meeting. Not having
been asked to leave, Potts remained throughout. During the
meeting Barton told Trudell he would have to work overtime
that evening and Trudell, after stating he had a prior commit-
ment, refused the assignment.
On August 19, Potts and Union President Larry Atkins at-
tended a previously scheduled morning meeting in Barton’s
office. Another supervisor (Roland Wood) was present in ad-
dition to Barton. The subject matter was disposed of quickly,
and Atkins asked Barton if another matter could be dis-
cussed. When Barton replied, ‘‘Yes, if its important,’’ Atkins
brought up the new overtime procedure asserting it was con-
trary to the negotiated agreement. Barton began to yell then
calmed down and told Atkins that he was coming up with
a different policy. Atkins moved on to the related question
of Trudell’s right to have a union representative present at
the prior evening meeting. After fulminating a bit, Barton re-
iterated his view that representation was unnecessary because
he had merely assigned overtime and had not disciplined
anyone. At that point Potts opined that if Barton was going
to do all the talking and not permit the Union to get a word
in ‘‘edgewise,’’ he too could talk all day and nothing would
be accomplished. With that Barton declared the meeting
over, got up, and advanced toward Potts in a manner that
prompted Wood to position himself between the two. Barton
pointed his finger in Potts’ face and ordered him to leave the
office. After continuing to sit for a moment, Potts stood up.
Barton, restraining himself with effort, repeated the order
saying ‘‘Jeff, please leave my office.’’ Potts walked toward
the door and before exiting turned, looked at Barton, and
said: ‘‘You’re a mean son of a bitch.’’2
Sometime later that day Barton issued a written discipli-
nary citation to Trudell for refusing the work assignment on
August 18.
Potts received a similar citation on August 20 for ‘‘unac-
ceptable behavior’’ toward a supervisor. It was later reduced
to a written verbal warning, the first step under Respondent’s
progressive disciplinary system.
I find the citation to be in violation of Section 8(a)(1) and
(3) of the Act.
The Board has long recognized that negotiations and the
administration and resolution of grievances arising under col-
lective-bargaining agreements, because of the very nature of
these endeavors, cause tempers frequently to flare, with com-
ments and accusations being made by all sides which would
generally not be acceptable conduct on the plant floor. There
are numerous cases in which the parties have attacked the
veracity, integrity, and good faith of each other as well as
their respective parentage and in tones of voice which are not
1158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975).
4 Over a 2-year period Crytzer had been told to report for dis-
cipline at least two times. On both occasions his supervisor told him
to bring a union representative because there was a problem.
5 Crytzer explains that he knew what the interview was about be-
cause he saw his hotel bill among papers spread on a table in front
of Cupples.
always calm, cool, collected, and unintimidating. Spann
Maintenance Co., 289 NLRB 915, 920 (1988).
Recognizing that it is generally the employees of the em-
ployer who have been elected or designated by the union as
officers of the union to represent it in the administration of
the contract and the resolution of grievances, the Board has
held that employees, when engaged in such activity, are pro-
tected by Section 7 of the Act for conduct, attitudes, and
statements which might not otherwise be protected. Trumbull
Asphalt Co., 220 NLRB 797 (1975); Huttig Sash & Door
Co., 154 NLRB 1567 (1965); Thor Power Tool Co., 148
NLRB 1379 (1964).
It is clear that the August 19 meeting involved a dispute
over contract interpretation and potential discipline of em-
ployee Trudell, and that Potts participated in his official ca-
pacity as acting shop steward. Such activity has long been
held to be protected under Section 7. Postal Service, 250
NLRB 4 (1980).
In these circumstances, I find that Potts’ use of the sobri-
quet ‘‘SOB’’ in referring to Supervisor Barton, following as
it did immediately upon Barton’s testy and abrupt termi-
nation of the meeting and before he had left the room, was
not so opprobrious as to carry him ‘‘beyond the pale’’ of the
Act’s protection. Crown Central Petroleum Corp. v. NLRB,
430 F.2d 724, 729 (5th Cir. 1970); Southwestern Bell Tele-
phone Co., 260 NLRB 237, 240 (1982).
Employees who have insolently questioned a supervisor’s
intelligence or called a supervisor a ‘‘liar,’’ a ‘‘cheat,’’ or an
‘‘asshole’’ while engaged in protected activity have retained
their protected status in spite of their remarks. Firch Baking
Co., 232 NLRB 772 (1977); Hawaiian Hauling Service, 219
NLRB 765, 766 (1975); Hamlet Steak House, 197 NLRB
632, 635 (1972); Postal Service, 241 NLRB 389, 390 (1979).
In Coors Container Co., 238 NLRB 1312, 1320 (1978), an
employee engaged in protected activity called a superior a
‘‘beaner’’ and a ‘‘Mexican mother fucker’’ and remained
protected under the Act. While Potts’ language may have
been no better than the quoted expressions, it certainly was
no worse.
B. Weingarten Issue3
On the morning of November 23, bargaining unit em-
ployee Robert Crytzer was told by Plant Manager Gary Ross
to report to the front office. Ross said nothing about any
forthcoming discipline.4
On arriving at the office Crytzer was met by the chief ex-
ecutive of the plant (Vice President Clark Hoffman) and a
man (John Cupples) he recognized as having something to do
with plant security. In fact, Cupples was an official in charge
of ‘‘security and investigations’’ for an affiliate of Respond-
ent. He had been summoned by Hoffman from the affiliate’s
office in Hudson, Ohio, and had spent several days inves-
tigating a suspected false claim for a $95.47 hotel bill on a
travel voucher submitted by Crytzer.
According to Crytzer, Hoffman ‘‘pointed at me and said
. . . what you did was wrong . . . I am going to prosecute
you . . . I don’t care if you have a union representative or
a lawyer sitting beside you . . . we’re going through with
this. And then he left [the room].’’
Continuing, Crytzer states that after Hoffman departed he
turned to Cupples and asked ‘‘John, what would you do in
my place? Would you get a union rep or a lawyer?’’ He
quotes Cupples as replying ‘‘Well Clark’s a fair guy. Just tell
us what happened.’’ Then, after assertedly telling Cupples ‘‘I
don’t want to make Clark any madder than he was’’ and
adding ‘‘it would be easy to explain what happened,’’
Crytzer proceeded to do so.5
The interrogation lasted about 1-1/2 hours and ended with
Crytzer, in the presence of Cupples and Hoffman, signing a
12-line typed statement wherein he admitted misappropriat-
ing the amount in question. He claims merely to ‘‘glanced’’
at the statement before signing it while telling Hoffman ‘‘If
John wrote down what I told him what’s in there, then that’s
what’s in there.’’
For their part Hoffman and Cupples each claim to have
advised Crytzer prior to the interview that he had a right to
be represented.
An employee has the protected right to union representa-
tion at an investigatory interview which he reasonably be-
lieves may result in disciplinary action. See Weingarten,
above. However, such a ‘‘right arises only in situations
where the employee requests representation.’’ Weingarten,
supra at 257; Montgomery Ward & Co., 273 NLRB 1226,
1227 (1984).
Crytzer’s claim that after Vice President Hoffman con-
fronted him and departed, he turned to Investigator Cupples
and asked ‘‘John, what would you do in my place? Would
you get a union rep or a lawyer?’’ is undenied, and I credit
it.
Although phrased in terms of a question, inquiries similar
to that made by Crytzer have uniformly been held sufficient
to put the employer on notice as to the employee’s desire for
representation. New Jersey Bell Telephone Co., 300 NLRB
42 (1990); Montgomery Ward, supra at 1227; NLRB v. Illi-
nois Bell Telephone Co., 251 NLRB 932, 938 (1980), affd.
674 F.2d 618, 622 (7th Cir. 1982); Southwestern Bell Tele-
phone Co., 227 NLRB 1223 (1977). I find that to be the case
here.
A valid request for representation having been made, Re-
spondent had three choices: (1) grant Crytzer’s request, (2)
give him the option of either continuing with the interview
unrepresented or foregoing it, or (3) deny the request and ter-
minate the interview. Montgomery Ward, above; Consoli-
dated Freightways Corp., 264 NLRB 541, 542 (1982); Gen-
eral Motors Corp., 251 NLRB 850, 857 (1980); Lennox In-
dustries, 244 NLRB 607, 608 (1979); Postal Service, 241
NLRB 141 (1979).
By continuing the interview without advising Crytzer of
these options, Respondent deprived him of his rights under
Weingarten and thereby violated Section 8(a)(1) of the Act.
C. Information Request
On November 24 Union President Atkins filed a grievance
on Crytzer’s behalf, alleging termination was ‘‘too demand-
ing for [the] infraction’’ and seeking a 3-day suspension and
1159ALLTEL PENNSYLVANIA, INC.
6 It was stipulated that the handwritten notes taken at the investiga-
tory interview by Cupples were destroyed on November 23 just after
the statement signed by Crytzer had been typed. The evidence does
not disclose whether Adkins knew of that circumstance prior to trial.
Hoffman maintains he never received a request for the notes.
warning instead. He also asked Hoffman for a copy of the
written statement signed by Crytzer on November 23.
The grievance was denied by Hoffman on December 1;
and Atkins claims that on that date, anticipating an appeal
to arbitration, he telephoned Hoffman and asked for copies
of:
(a) Crytzer’s signed statement.
(b) his expense report, including hotel voucher, and
(c) notes taken by Couples during the interview on
November 23.
Assertedly, Hoffman said he’d see to it that Cupples pro-
vided the written statement, but made no mention of items
(2) and (3). A copy of the statement was given to Crytzer
on or shortly before December 8 and he promptly gave it to
Atkins. The grievance was scheduled for hearing before an
arbitrator on July 11, 1994.
Charges in the instant proceeding were filed by the Union
on December 27. As pertinent, it therein claimed that the Re-
spondent failed to provide ‘‘requested information’’ relevant
to the processing of Crytzer’s grievance.
On December 29 Atkins had occasion to meet with Hoff-
man at the plant. According to Atkins, Hoffman asked what
information he needed for the grievance hearing. Atkins
asked for (b) and (c) above; and Hoffman promised to pro-
vide the former and would check with Investigator Cupples
regarding the latter.6 The hotel bill and expense voucher
were made available to Atkins during the first week of Janu-
ary 1994.
I find no violation.
The statement signed by Crytzer was requested on Novem-
ber 24 and provided on December 8. I find no significant
delay. While the Union had a right to receive the statement
directly from Respondent (New York Times Co., 265 NLRB
353 (1982)), the evidence shows that Crytzer promptly made
it available to Union Agent Atkins; and, absent a pattern of
bypassing or otherwise denigrating the Union, any harm done
was de minimus.
As to the expense voucher and hotel bill, I credit Hoffman
that those items were specifically requested only on Decem-
ber 29; and since they were made available during the fol-
lowing week, here also no significant delay occurred.
Cupples’ handwritten notes were destroyed well prior to
any claimed oral request therefore; and Hoffman’s failure to
advise of that circumstance, assuming the notes were specifi-
cally requested, is at best harmless oversight.
CONCLUSION OF LAW
Respondent violated the Act in the particulars and for the
reasons stated above; and its violations have affected, and
unless permanently enjoined will continue to affect, com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
[Recommended Order omitted from publication.]