ASSET PROTECTION & SECURITY SERVICES, L.P.

National Labor Relations Board - Administrative Judge Opinions

Jul 7, 2014

28-CA-108982 (N.L.R.B. Jul. 7, 2014)

JD(SF)–32–14
Florence, Arizona
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ASSET PROTECTION & SECURITY
SERVICES, L.P.
and Case 28-CA-108982
LARRY DAWSON, an Individual
Douglas Callahan, Esq., and John Giannopoulos, Esq.,
for the General Counsel
Keith B. Sieczkowski, Esq., for the Respondent
DECISION
MARY MILLER CRACRAFT, Administrative Law Judge. At the beginning of an interview
that he reasonably believed might result in disciplinary action, Detention Officer Larry Dawson
(Dawson)1 stated that he was “self-represented” but he would like a designated employee witness
at the interview. His request was denied. At the interview, Dawson received a suspension for a
prior incident but thereafter he was discharged for his behavior during the interview. The issue in
this case is whether Asset Protection & Security Services, L.P. (Respondent) violated Section
8(a)(1) of the National Labor Relations Act (the Act) by denying Dawson a witness, conducting
the interview after denying the request for a witness, and discharging Dawson for conduct at his
“self-represented” interview.2 No violation is found.
On the entire record, including my observation of the demeanor of the witnesses,3 and
after considering the briefs filed by counsel for the General Counsel and counsel for the
Respondent, the following findings of fact and conclusions of law are made.

1 Dawson filed the underlying unfair labor practice charge and amended charge on July 12, 2013, and
January 23, 2014, respectively. Complaint and notice of hearing issued on January 31, 2014. The hearing
took place in Phoenix, Arizona on April 2 and 3, 2014.
2 In NLRB v. J. Weingarten, Inc., 420 U.S. 251, 256–258 (1975), the Court held, inter alia, that an
employee may request representation at an investigatory interview which the employee reasonably
believes will result in disciplinary action.
3 There is little dispute with regard to the facts of this case. However, when necessary, credibility
resolutions have been made based upon a review of the entire record and all exhibits in this proceeding.
Witness demeanor and inherent probability of the testimony have been utilized to assess credibility.
Testimony contrary to my findings has been discredited on some occasions because it was in conflict with
credited testimony or documents or because it was inherently incredible and unworthy of belief.
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I. Jurisdiction and Labor Organization Status
Respondent is a limited partnership located at the United States Immigration and
Customs Enforcement (ICE) Detention and Transfer facility in Florence, Arizona, providing
security services to the United States Government. It admits it meets the Board’s jurisdictional
standard for non-retail direct outflow4 and that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. Respondent admits and I find that the
International Union, Security, Police, Fire Professionals of America (SPFPA) on behalf of its
Local #830 is a labor organization within the meaning of Section 2(5) of the Act.5 Thus this
dispute affects interstate commerce and the Board has jurisdiction of this case pursuant to
Section 10(a) of the Act.
II. Facts and Analysis
Corporate and Collective Bargaining Background
Since November 2009, Respondent has provided unarmed and armed detention and
transportation guards at the Florence ICE facility. Respondent’s subcontractor, Ahtna Technical
Services, Inc. (Ahtna), also provides unarmed and armed detention and transportation guards at
the Florence ICE facility. Respondent and Ahtna have a collective-bargaining agreement with
the Union covering a unit of “All full-time and part-time Detention and Transportation Officers .
. . excluding all other Employees including office clerical Employees and professional
Employees as defined in the National Labor Relations Act.” The collective-bargaining agreement
relevant to these proceedings was in effect from November 1, 2010 through October 31, 2013.
Guadalupe Barajas, Jr. (Barajas) served, at all relevant times, as Project Manager for
Respondent and Ahtna. Although he is no longer employed with Respondent, Respondent admits
that Barajas was a supervisor within the meaning of Section 2(11) of the Act. Other members of
management include Jason Lewis, Chief of Security, and Charles Rowe, Lieutenant.
Respondent maintains about 250 officers at the Florence ICE facility which operates 7
days a week, 24 hours per day. Each guard works a designated 5-days on, 2-days off shift on the
morning, swing, or night shift. For instance, Dawson was working the swing shift with
Wednesdays and Thursdays as his designated days off. The shifts are awarded based on
seniority.
At the beginning of each shift, there is a “muster” at which all employees assemble in an
open area near the property storage building. At the time of muster, employees are briefed about
the current status of operations as it affects their duties.

4 Siemons Mailing Service, 122 NLRB 81, 85 (1958).
5 The pleadings use the description as referenced above, that is, “International Union, Security,
Police, Fire Professionals of America (SPFPA) on behalf of its Local #830.” This entity is referred to as
the Union. In order to distinguish between the international and the local, when SPFPA is utilized it refers
to the international union. When Local 830 is utilized it refers to the local union.
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Local 830 Political Campaigns
The General Counsel asserts that political activity in Local 830 influences the
appropriateness of particular Weingarten representatives. In 2010, Dawson served as an
appointed chief steward and later was appointed vice-president. Then in September 2010, SPFPA
removed the Local 830 officers and named detention officer Ronald Ochs (Ochs) as trustee and
SPFPA’s site representative. Local 830 elections were held in early 2011. Dawson was elected
president with a term expiring in March 2012. Although not on Dawson’s slate, Lyn Fulmer
(Fulmer) was elected vice president and served with Dawson
Local 830 elections were held again in February 2012. The Dawson slate ran against the
Ochs slate. On February 20, 2012, Dawson emailed the electorate asking that voters cast their
ballots for his slate: “Do you want a Board with a track record of giving your rights away by
crawling in bed with the companies or do you want a Board that will continue to push and
preserve your rights as employees and Union members.”
The Ochs slate found fault with the Dawson administration in lack of representation on a
32/40 overtime issue, failure to act on and process grievances in a timely manner, and in failure
to negotiate a health and welfare increase to offset the increase in premium costs. In campaign
literature, they stated, “The choice is simple. If you approve of what has happened in the past
twelve months you will vote to keep those responsible on the Board.” The email concluded that
if employees wanted a change, they should vote for the Ochs slate.
These email propaganda statements from February 2012 are relied upon by the General
Counsel to show animus between the parties. No literature or statements from the 2013 campaign
were presented. There is no other evidence of animus apart from the fact that Ochs and Dawson
had run against each other.6
Ultimately the Ochs slate, which included Fulmer as vice-president, prevailed in the
February 2012 election. Although Dawson challenged Ochs for president in the March 2013
election, Dawson was discharged by Respondent prior to the election.
Muster
On Sunday, January 13, 2013,7 Dawson reported for work and joined about 60-70
employees at the 1:45 pm muster conducted by Lt. Charles Rowe (Rowe). Prior to addressing the
employees, Rowe asked the employees to move in closer to him. Dawson moved about 5-7 feet
closer. Rowe asked Dawson two more times to move further in and on both occasions Dawson
refused to move. Rowe said he would deal with Dawson later. After muster was completed,
Rowe told Dawson, “When I tell you to do something, I expect you to do it.” According to

6 In early 2012, prior to the election, Dawson attempted to serve Ochs with internal charges based on
“inappropriate activities, campaigning date, and so forth.” Ochs did not pick up these charges so Dawson
sent them to SPFPA. There is no further evidence regarding these charges nor is there evidence that
Respondent was aware of these charges.
7 All further dates are in 2013 unless otherwise specified.
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Dawson, both he and Rowe raised their voices during the ensuing discussion. At the end of the
discussion, Rowe told Dawson to report to work.
Unpaid Administrative Leave
Although Dawson returned to work after muster, at about 3:50 p.m. Rowe told Dawson
he was being escorted out of the facility. Rowe further stated that Barajas would contact Dawson
the following morning. Dawson turned in his keys and his identification documents. He was then
escorted from the facility.
On January 15, Barajas and Dawson spoke by phone. Barajas told Dawson he was placed
on unpaid administrative leave for insubordination at the January 13 muster. Barajas told
Dawson he had submitted a report of the incident to corporate. Dawson protested that Barajas
had not contacted him before preparing the report. Barajas asked Dawson to submit a report.
During their discussion, Dawson complained about rumors circulating at the facility that
he had taken a swing at Rowe during the January 13 muster incident and asked Barajas to stop
them. Barajas asked for names and dates of the rumors and Dawson said he would provide them
later.
Barajas told Dawson he would need to report for an interview regarding the muster
incident. The stated purpose for the interview, as set forth by Barajas in an email to Dawson, was
“to offer you the opportunity to better explain the circumstances as it relates to this [muster]
incident and we in turn will explain our concerns then consider our options to best resolve the
matter.”
Although Respondent originally scheduled the interview on January 21, Dawson asked
that it be held on January 22 at a site away from the facility. Dawson chose SPFPA international
representative and organizer and former Local 830 business agent Robert Inman (Inman) to
represent him. Inman had a conflict on January 21 and, further, Inman did not wish to enter the
facility. Dawson explained to Barajas that he believed there was a conflict of interest with the
current officers of Local 830 representing him at an investigatory interview. Barajas refused to
hold the interview away from the facility. Refusal to hold the interview offsite is not alleged as
an unfair labor practice.
In the meantime, by email of January 28, Ochs told Dawson and Barajas that Local 830
vice-president Fulmer would be Dawson’s representative at the interview. In fact, Fulmer served
as Local 830’s point of contact for disciplinary interviews.
Ultimately, through a series of email communications, Dawson and Barajas agreed to
meet at the facility on January 29. Barajas told Dawson that the meeting would afford Dawson
an opportunity to explain the facts surrounding the muster. Dawson informed Ochs and Barajas
that he did not want Fulmer to be present at the interview stating, “I will be representing myself.”
Collective Bargaining Agreement and Oral Understanding regarding Disciplinary Interviews
Section 1.4C of the contract states:
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If the Employee requests, the Company will call for a Union Representative prior
to any disciplinary action taken, whether it be written or verbal. The supervisor
will release the Union Representative as soon as possible. The Union
Representative will be paid for time spent in this regard, upon receiving
Supervisor approval of relief from duty.
In addition to the contract language, Respondent and Local 830 have an oral
understanding regarding disciplinary interviews. When Barajas arrived in 2010, he and the Union
reached an understanding that a steward would be present at all interviews. If the employee did
not want the steward to be present, the employee could request that the steward be dismissed.
Later, Barajas dealt with vice-president Fulmer at all disciplinary interviews. He was the “point
of contact” for Barajas in dealing with disciplinary matters.
Interview
On January 29, Dawson arrived at the facility and was escorted by detention officer
Donald Zimmerman (Zimmerman) to Barajas’ office. Zimmerman was the vice-presidential
candidate on Dawson’s slates in 2011 and 2012. Zimmerman resigned from the Union in March
2012. On their walk to the office, Dawson asked Zimmerman if he would act as a witness at the
interview. Zimmerman agreed to do so. Both Zimmerman and Dawson agreed that Zimmerman
was to be a “witness” and not a “representative” at the interview and that Dawson would act as
his own representative. Dawson did not at any time on January 29 ask for a union representative.
Zimmerman and Dawson reported to Barajas’ office. Dawson said he would represent
himself and asked that Zimmerman remain as a witness. Barajas said he did not know how self-
representation would work. Dawson said that was why he wanted a witness. Barajas stated that
Zimmerman could not remain as a witness noting that he was on the clock, had work to perform,
and he was not a Union member or steward. When Dawson asked a second time that
Zimmerman remain as a witness, Barajas told Zimmerman to go back to work. Zimmerman left
and Security Chief Jason Lewis joined Dawson and Barajas in the office. Barajas asked for
Dawson’s report of the January 13 muster incident. Dawson gave Barajas a handwritten report.
Dawson asked what was going to be done about the rumors circulating in the facility.
Barajas asked Dawson for the names and dates of the rumors. Dawson stated he would not
provide the information and he stated that he did not think he should have to conduct the
company’s investigation.
Barajas told Dawson that the purpose of the meeting was to issue discipline to Dawson.
Barajas gave Dawson a record of disciplinary action (RDA) suspending him for 5 days for
insubordination at the January 13 muster. The General Counsel does not dispute the lawfulness
of this suspension. Barajas asked Dawson to review the RDA and asked if he understood that he
was not to act in this manner – that insubordination would not be tolerated. Dawson did not
respond at first but when asked again he said, “You’re speaking the English language, aren’t
you?” Barajas told Dawson that as an employee of the company, he was expected to answer
when he was asked a question. Dawson responded that he was not certain whether he was an
employee of the company anymore.
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The recitation of facts of the January 13 muster in the RDA state that Dawson was asked
by Rowe to move twice and refused and that Dawson acted aggressively toward Rowe, behavior
that Respondent would not tolerate. Dawson was instructed in the RDA to take corrective action
and follow all directives. Barajas went over the RDA with Dawson. When he concluded, Barajas
crossed out the suspension dates on the RDA (which had been completed in anticipation of an
earlier date for the interview) and asked Dawson what his days off were. Dawson responded that
every day was a day off. Barajas asked again and Dawson told him he did not remember. Barajas
left to check what Dawson’s days off were and returned stating that Dawson’s days off were
Wednesday and Thursday. Barajas filled in the days of suspension as from Friday, February 1, to
Tuesday, February 5. Dawson refused to sign the record of disciplinary action, which is not
unusual.
Termination
Immediately after conclusion of the January 29 interview with Dawson, Barajas prepared
a memorandum to CEO Scott Mandel (Mandel) recommending that Dawson be discharged
immediately for insubordination during the interview. Barajas recounted Dawson’s behavior
including refusal to respond to questions, refusal to provide the names of those spreading rumors,
refusal to acknowledge his employment relationship with Respondent, and refusal to state what
his days off were. Mandel approved the discharge for insubordinate conduct during the January
29 interview.
Analysis: Weingarten Issues
The General Counsel avers that Respondent violated Section 8(a)(1) of the Act by
refusing Dawson’s request for an employee-witness at the interview, by conducting the interview
after denying Dawson a witness, and by discharging Dawson because of his conduct during an
interview in which he was denied a witness.
Respondent, on the other hand, contends that no violation occurred because the
Weingarten right at an investigatory interview is to a union representative. Respondent contends
that Weingarten does not provide a right to a witness. Because there was no request for a
Weingarten representative, Respondent argues no violations may be found. Further, Respondent
contends that the record does not establish a conflict between Dawson and Local 830 which
would require a representative other than a member of the Local 830’s Board.
Weingarten establishes that “an employee has the right to union representation at an
interview which the employee reasonably fears will result in discipline.”8 Dawson was told that
the purpose of the interview was to discuss the circumstances and Respondent’s concerns
surrounding the January 13 muster and for Respondent to consider its options to resolve the
matter. Thus, Dawson reasonably believed that the January 29 interview could result in
discipline.

8 United States Postal Service, 360 NLRB No. 79, slip op. at 1 (2014).
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Generally, the Weingarten right to representation includes a right to choose a specific
union representative if that representative is available.9 Respondent denied Dawson’s request that
the interview be conducted offsite to accommodate international representative Inman, whom
Dawson chose to act as his specific union representative. This denial is not alleged as an unfair
labor practice.
Two weeks after the January 13 muster incident, Dawson and Barajas were continuing
their efforts to set up the interview. By that time, Local 830 had informed Dawson and Barajas
that Fulmer would act as Dawson’s representative. At this point, on January 28, Dawson
announced that he would serve as his own representative. Indeed, Dawson was an articulate,
intelligent witness and certainly exhibited the ability to represent himself. His acting on his own
behalf is, moreover, consistent with the Court’s holding in Weingarten that an employee may
forgo the guaranteed right to representation and, if he prefers, participate in an interview
unaccompanied by his union representative.10
Upon arriving at the scheduled January 29 interview, Dawson stated that he would be
self-represented, as previously planned, and announced for the first time that he wanted an
employee witness at his self-represented interview. In fact, Dawson presented Zimmerman to act
as his employee witness while Dawson represented himself. Both Dawson and Zimmerman
understood Zimmerman’s role. It was to sit and listen and not take part in the interview.
Zimmerman was on guard duty at the time. No advance notice of the request for
Zimmerman’s presence had been given Respondent and, accordingly, Respondent had no
opportunity to organize a replacement for Zimmerman. Thus, due to these extenuating
circumstances, as well as Zimmerman not being a steward or a union member, Respondent
advised Zimmerman to return to work.
Dawson’s request for an employee witness at his self-represented interview is not a right
specifically guaranteed in Weingarten as it is currently applied.11 The right to a Weingarten
representative is a right to a representative who is an agent of the labor organization which serves
as the exclusive representative of the employees. Weingarten, supra, 420 U.S. at 257-258; see
also, IBM Corp., supra, 341 NLRB at 1291-1292 (a representative at an investigatory interview
acts not only for the employee being interrogated but also for all other employees in the unit).

9 See, e.g., Anheuser-Busch, 337 NLRB 3, 8–9 (2001), enfd. 338 F.3d 267 (4th Cir. 2003), cert.
denied 541 U.S. 973 (2004); Consolidation Coal Co., 307 NLRB 976, fn. 1, 978 (1992).
10 Weingarten, supra, 420 U.S. at 257.
11 Bodolay Packaging Machinery, 263 NLRB 320, 326 (1982), relied on by the General Counsel, is
inapposite. Although the employee’s request for a “witness” was treated as a request for a Weingarten
representative, the case was decided at a time when Weingarten rights had been extended to
unrepresented employees, thus at a time when an unrepresented employee would ask for a “witness”
because no union or union representative was on the scene. See Materials Research Corp., 262 NLRB
1010 (1982) (extending Weingarten to non-union workplace), later reversed in E.I. du Pont de Nemours
& Co., 289 NLRB 627 (1988), and later, Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000)
(extending Weingarten to non-union workplace), enfd in relevant part, 268 F.3d 1095 (D.C. Cir. 2001),
cert. denied, 536 U.S. 904 (2002), reversed in IBM Corp., 341 NLRB 1288 (2004).
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IBM Corp., supra, sets forth the Board’s rationale for refusal to extend Weingarten rights
in a nonunion setting. As Respondent notes, not only does IBM Corp., supra, hold that a union
representative at an investigatory interview acts for the entire bargaining unit, the Board also
recognized that a coworker chosen on an “ad hoc basis” might undermine the union’s ability to
think beyond the immediate situation and look to set precedent.
Further, even if Dawson’s request for Zimmerman’s presence as a witness could be
construed as a request for a Weingarten representative, Dawson was not entitled to the presence
of Zimmerman because a knowledgeable union representative was available, the parties’ contract
obligates Respondent to provide a “Union Representative,” and Respondent and Local 830 had
an oral agreement to utilize Fulmer as a representative for the interview.
The General Counsel argues to the contrary asserting that if no union representative is
available and nothing in the parties’ contract requires a union representative at an investigatory
interview nor is there an oral understanding which establishes a procedure for representation, a
fellow employee with no official union status may be present at the interview as a
representative.12
These are narrow circumstances and they are not present here. Here the parties’ contract
specifically requires that a “Union Representative” be present at disciplinary interviews upon
employee request. Moreover, Fulmer, a Local 830 representative, was offered to Dawson
pursuant to the oral understanding between Respondent and Local 830 that Fulmer would be the
point of contact at investigatory interviews and for this interview in particular. Thus, I find that
the narrow circumstances for utilization of a fellow employee are not present because Fulmer
was available, the contract provided for a “Union Representative” upon request, and the oral
understanding between Respondent and Local 830 was that Fulmer would represent Dawson.
Finally, the General Counsel argues that because there was hostility between the current
Local 830 officials and Dawson, Fulmer was an unacceptable Weingarten representative.
Certainly, that was Dawson’s stated position throughout. This was why he attempted to obtain
the assistance of Inman. His selection of Inman was rejected by both Respondent and Local 830.
Their rejection of Inman is not alleged as a violation of the Act. Absent Inman’s assistance,
Dawson rejected Fulmer’s assistance because he did not want his opposition handling the
investigatory interview. Dawson thus decided to represent himself. This was his choice to make.
As a knowledgeable past official of Local 830, he knowingly waived his right to union
representation at the investigatory interview.
Of course, where the interests of a union are adverse to those of an employee it
represents in grievance procedures, the Board refuses to defer.13 Analogizing the adversity of a

12 L. A. Water Treatment, 263 NLRB 244, 245(1982) (denial of fellow employee as representative at
investigatory interview violative where no union representative or steward available, contract did not
require presence of union representative at interview, and employer and union had no oral understanding
establishing a procedure for representation at interviews); Illinois Bell Telephone Co., 251 NLRB 932,
933 (1980), enfd in relevant part 674 F.2d 618 (7th Cir. 1982), supplemented 275 NLRB 148 (19985),
enfd sub nom CWA v. NLRB, 784 F.2d 847 (7th Cir. 1986) (same).
13 United Technologies Corp., 268 NLRB 557, 560 (1984).
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Weingarten representative to the adversity of a union in refusal to defer to arbitration, General
Counsel argues that “the sharp conflict of interest” between the current Local 830 officers and
Dawson, a former union president and current candidate for president, created a risk that Fulmer
would not properly represent Dawson at the interview.14
The record establishes that Dawson and Ochs have run against each other three times.
Once Dawson won and once Ochs won. The third election took place after Dawson’s discharge.
Campaign literature from the 2012 campaign indicates that Ochs found fault in Dawson’s
representation because of failure to process grievances in a timely manner, failure to represent
employees on a 32/40 overtime issue, and failure to negotiate a health and welfare increase to
offset increased premium costs. In other words, the Ochs campaign rhetoric was based on the
perception that Ochs could do better than Dawson. No personal or derogatory evidence was
introduced which would show animosity.
Similarly, Dawson’s February 2012 campaign literature indicates that he accused Ochs of
giving away employee rights and “crawling in bed” with the employer. These statements are also
confined to typical campaign rhetoric. Thus, there is no specific evidence of animus. Moreover,
any potential ill effects of the 2012 campaign rhetoric were attenuated due to passage of time.
At the time of the investigatory interview, Dawson was running against Ochs for
president of Local 830. Fulmer was running for vice-president on the Ochs slate. While this fact
alone is sufficient to support a possibility that Fulmer’s representation of Dawson might have
been awkward, it is insufficient to warrant a finding of hostility, conflict of interest, or adverse
interest. Moreover, in 2011, Fulmer and Dawson served concurrently as vice-president and
president respectively with no apparent antagonism that would suggest a disqualifying basis on
Fulmer’s part. Finally, there were nine other officers of Local 830 who might have been
considered had there been specific evidence of animus between Fulmer and Dawson. Given the
lack of evidence regarding any specific animosity15 and the absence of any prior failure on

14 General Counsel relies by analogy on Tubari LTD, 287 NLRB 1273, 1274 (1988), enfd. mem. 869
F.2d 590 (3d Cir. 1989) (in arbitration proceeding, union breached duty of fair representation to
discharged employees who supported rival union); Consolidated Edison Co., 280 NLRB 338, 346 (1986)
(judge finds that deferral inappropriate due to sufficient doubt that dissident grievant would be adequately
represented); United Technologies Corp., supra, 268 NLRB at 560 (deferral appropriate despite single
statement of foreman to grievant and shop steward during first step meeting that if grievance processed to
next step, grievant would be disciplined); Kansas Meat Packers, 198 NLRB 543, 543–544 (1972)
(deferral inappropriate where business agent caused discharge of shop steward/grievant who made
numerous complaints to union regarding safety hazards and on the job injuries resulting in friction with
business agent, resigned as union steward and terminated withholding of dues).
15 Specific animosity was found, for instance, where the grievant filed an unfair labor practice charge
against the union alleging the business agent caused his discharge as well as evidence of strong personal
hostility of the union representative for grievant, American Medical Response, 359 NLRB No. 144, slip
op. at 1, fn. 2 (2013) (currently set aside post-issuance of NLRB v. Noel Canning, No. 12-1281, __ S.Ct.
__ (Jun 26, 2014); where the union threatened to discharge and caused the discharge of grievants who
supported a rival union, Warehouse Employees (Dubovsky & Sons), 296 NLRB 396 (1989); where the
aggrieved party was seeking to decertify the union, Electrical Workers (S&M Electric), 223 NLRB 1499
(1976).
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Fulmer’s part to faithfully perform any standard representational duties, it is impossible to find
the “sharp conflict of interest” referred to by General Counsel.
General Counsel relies on Dresser Industries, 289 NLRB 90, 109 (1988), in which the
judge found that substantial hostility of one slate of candidates for another rendered deferral to
arbitration unwarranted. The hostilities included proposing an internal union rule which would
have disqualified the opposing slate, strong arming a member of the opposing slate to resign as a
trustee, and telling a member of the opposing slate who asked for assistance with a disciplinary
warning that he could “wipe his ass” with it. No exceptions were taken to refusal to defer and the
Board did not discuss the judge’s findings. Thus, the decision not to defer has no binding effect.
Moreover, the level of hostility in Dresser distinguishes it from the facts of the instant case. No
such evidence of animus is present on the record in this case.
Weingarten does not specifically encompass a self-represented employee’s right to an
employee-witness. Under the circumstances of this case, that is, where the contract requires a
union representative, Local 830 and Respondent had selected a union representative, and there is
insufficient evidence to find a risk that the representative would not fairly represent Dawson,
extension of Weingarten is unwarranted. Further, Dawson waived his right to a Weingarten
representative and determined to represent himself. Finally, utilization of an ad hoc employee-
witness would undermine the collective rights of the bargaining unit.
Thus, on the record as a whole, no violation of Section 8(a)(1) occurred by denial of
Zimmerman’s presence as a witness at the investigatory interview because the presence of an
employee-witness for a self-represented employee is not encompassed in Weingarten. Moreover,
even if the request for an employee-witness were encompassed in Weingarten, there was no
violation in denying the request because a union representative was available, the parties’
contract required that Respondent provide a union representative, and the parties’ oral agreement
was that Fulmer would handle the investigatory interview. Finally, absent specific evidence of
animus, the mere fact that Fulmer and Dawson were on competing slates in the Local 830
elections, does not in and of itself create a risk that Fulmer would not fairly represent Dawson.
Thus, Respondent did not violate the Act by refusing to allow Zimmerman to remain as a witness
at Dawson’s interview. It follows that Respondent did not violate the Act by continuing
Dawson’s “self represented” interview without Zimmerman’s presence. Finally, because
Respondent did not unlawfully deny an employee-witness at the interview, Respondent did not
discharge Dawson in violation of Section 8(a)(1) of the Act.16
Analysis Alleged Interrogation
Dawson asked Barajas to stop false rumors that he had taken a swing at Rowe during
muster on January 13. On several occasions, Dawson renewed this request to stop the rumors. On
each of these occasions, Barajas asked who was spreading the rumors and when.

16 See generally, YRC Freight, 360 NLRB No. 90, slip op. at 2–4 (2014) (employee may not lawfully
be subjected to retaliation for making a Weingarten request but assertion of Weingarten right does not
immunize employee from potential discipline).
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The General Counsel alleges that Barajas’ questioning constituted interrogation in
violation of Section 8(a)(1) of the Act. In his opening statement, counsel for the General
Counsel’s position was that by asking Dawson for the names of employees spreading the rumors,
Respondent violated the Act. On brief, the General Counsel’s position is subtly different.
General Counsel argues that by asking Dawson to provide the names of coworkers who alerted
Dawson to the damaging rumors being spread about him, Respondent violated the Act.
This second theory might establish a violation if it had happened. But this theory is
unsupported by any evidence. Rather, the evidence is that Dawson wanted the rumors stopped
and Barajas, who was unaware of any rumors, asked who was spreading the rumors. He never
asked Dawson for the names of his coworkers who alerted Dawson to the rumors. Under these
circumstances, there is no violation.
On these findings of fact and conclusions of law and on the entire record, the
following recommended Order is issued:17
ORDER
The complaint is dismissed.
Dated: Washington, D.C. July 7, 2014
_______________________
Mary Miller Cracraft
Administrative Law Judge

17 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order, as provided in Sec. 102.48 of the Rules, shall be adopted
by the Board and all objections to them shall be deemed waived for all purposes.