Crown Zellerbach, Inc.

National Labor Relations Board - Board Decisions

Dec 29, 1978

239 N.L.R.B. 1124 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Crown Zellerbach, Inc., Flexible Packaging Division
and Michael Kolakana. Case 32-CA-856
December 29, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
On September 12, 1978, Administrative Law Judge
Russell L. Stevens issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Respon-
dent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.'
I Chairman Fanning finds Coca-Cola Bottling Co of Los Angeles. 227
NLRB 1276 (1977), in which he dissented, clearly distinguishable from this
casc.
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS. Administrative Law Judge: This
matter was heard in Oakland, California, on July 27, 1978.'
The complaint, issued May 16, is based upon a charge filed
April 17 by Michael Kolkana,2 an individual. The com-
plaint alleges that Crown Zellerbach (Respondent) violated
Section 8(aXl) of the National Labor Relations Act, as
amended, (herein called the Act) by interviewing and sus-
pending Kolkana after denying Kolkana's request for
union representation.
All dates hereinafter are within 1978. unless stated to be otherwise.
2 All individuals are referred to herein by their last names.
All parties were given full opportunity to participate, to
introduce relevant evidence, to argue orally and to file
briefs. Briefs, which have been carefully considered, were
filed on behalf of General Counsel and Respondent.
Upon the entire record, and from my observation of the
witnesses and their demeanor, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent is, and at all times material herein has been,
a corporation duly organized under, and existing by virtue
of, the laws of the State of Nevada, with an office and
principal place of business located in San Leandro, Califor-
nia, where it is engaged mn the business of manufacturing
paper products. During the past 12 months Respondent, in
the course and conduct of its business operations, sold and
shipped goods or services valued in excess of $50,000 di-
rectly to customers located outside the State of California.
I find that Respondent is, and at all times nmaterial
herein has been, an employer engaged in commerce and in
a business affectingcommerce, within the meaning of Section
2(2), (6), and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
Association of Western Pulp and Paper Workers Union
(AWPPW or Union) is, and at all times material herein has
been, a labor organization within the meaning of Section
2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
Background
Respondent's plant involved in this controversy is locat-
ed in San Leandro, California. The plant has approximate-
ly 225 employees, who work on three shifts of 8 hours each.
Rick Dauber is the plant production manager and Dick
Furino is head of the printing department. Kolkana was a
press helper at times relevant herein.
Prior to November 16, 1977, Respondent's production
and maintenance employees had been represented for sev-
eral years by Printing Specialties and Paper Products
Union (PSPP). Following an election on November 16,
1977, the Board certified the union involved herein as rep-
resentative of the production and maintenance employees,
effective March 8, 1978.
On March 10, at which time Respondent and the Union
had not negotiated a contract, Respondent found it neces-
sary because of a plant breakdown to lay off or terminate
approximately II employees. Since formal procedures had
not been established between Respondent and the Union,
Furino asked Bob Zellner, a leading union advocate in the
plant, who had been a union observer at the election and
who later was elected president of the union local, to act as
spokesman for the Union during the layoff and the prob-
lems occasioned thereby. Zellner agreed to, and did, act as
requested.
Kolkana has a long history of excessive tardiness and
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CROWN ZELLERBACH
absences from work,3 and was suspended in 1976 because
of unexcused absences.4
On November 13, 1977, Kolkana received step-one
counseling and warning, pursuant to Respondent's custom-
ary practice and policy. The letter outlining the step-one
procedure that was followed, is signed by Furino, but Kol-
kana refused to sign. Kolkana was represented at the hear-
ing by a union representative, and a copy of the step-one
letter was sent to the union (then PSPP) shop committee.
On February 9, 1978, Kolkana received a step-two writ-
ten warning because of excessive absences. The letter was
signed by Furino and Dauber, but Kolkana refused to sign.
Kolkana did not ask for a union representative, and none
attended the step-two proceedings.
On March 9, Kolkana received another step-two warn-
ing,' which he refused to sign.
On April 5, Furino and Dauber met with Kolkana in
Furino's office for a step-three procedure, which involved a
proposed I-week suspension. After Furino and Dauber ex-
plained the reason for the meeting, Kolkana said he want-
ed to have a union representative with him. Furino and
Dauber explained that a contract had not been signed, and
they asked Kolkana if Zellner would be satisfactory. Kol-
kana replied, "Sure." Kolkana did not ask for or suggest
anyone other than Zellner. Furino left the office, was gone
momentarily, and returned with Zellner. Zellner stated that
he came into the meeting to act as a witness only, not to act
as a representative. Furino and Dauber explained to Zell-
ner the purpose of the meeting, Zellner asked about past
procedure for suspending employees, and Furino and Dau-
ber explained past procedure. Furino and Dauber signed
the letter of suspension.6 Zellner signed the letter as a wit-
ness. Kolkana refused to sign the letter. Kolkana then was
suspended, from April 10 through April 16.
Issue
The principal issue is whether or not Respondent refused
to provide union representation for Kolkana upon his re-
quest, to attend a disciplinary hearing, in violation of the
Act.
A. Respondent's Past Practice
So far as the record shows, Respondent never has vio-
lated the Act, nor has it ever been accused of breach of
contract relating to disciplinary meetings or otherwise.
Respondent has held disciplinary hearings over the years
on many occasions, and while under contract with PSPP,
routinely provided employees with union representation
upon request.
There is no hint in the record of any change in
Respondent's course of conduct. Its current contract with
the Union provides for, and its current practice affords,
union representation upon request, as in the past.
Resp. Exhs. 3, 4, and 5.
4Respondent has a standard policy relating to tardiness and absences.
and disciplinary measures for excessive. unexcused absenteeism. See Resp
Exhs. I and 2. The policy is regularly posted for employees' perusal
5Reduced to a wntten warning. from a proposed step-three suspension
without pay.
6 G.C. Exh. 2.
B. Respondent-Union Relationship as of April 5
As of April 5, when Kolkana's disciplinary meeting was
held, AWPPW had been certified as the representative for
Respondent's emplcyees, but the parties then had not ne-
gotiated a contract, nor had the Union designated any
shop steward or other representative. AWPPW was a rep-
resentative new to Respondent, and the parties had no cus-
tomary practice or procedure, as of April 5, relating to
discipline of employees. The Union's nearest representative
was in Antioch, approximately 60 miles away, and so far as
the record shows, there was no relationship between that
representative, who worked in another of Respondent's
plants in Antioch. and Respondent's San Leandro plant.7
It is apparent that AWPPW's Antioch organization was a
stranger to Respondent.
Zellner was a ?rincipal figure in organization of
Respondent's plant. He was a union observer at the repre-
sentation election and later, after April 5, was voted presi-
dent of the local. The record is clear that Respondent rec-
ognized Zellner as a leading union advocate and
participant in union activity, respected Zellner's position
within the AWPPW movement at Respondent's plant, and
dealt with him on union matters, particularly the layoff of
March 10. According to Furino's uncontradicted and
credited testimony, Zellner's name was among others post-
ed on bulletin boards prior to April 5, as a candidate for
union election. There is nothing to indicate that Respon-
dent dealt with Zellner on other than on an arm's-length
basis.
C. The Disciplinary Meeting of April 5
There is no dispute concerning the time and place of the
meeting, the reason for its having been called, the disci-
pline given to Kolkana, and the names of persons attend-
ing. The only major discrepancy among witnesses is some
of the conversation at the meeting. Kolkana testified that
he asked for union representation, and that Dauber replied
"Well, we're not obligated to give you union representation
until a contract is signed with the union and the company.
We do not even have to let them on the property until a
contract is signed." Kolkana said Furino asked if Kolkana
wanted a witness, and Kolkana replied "yes"; Furino then
asked if Zellner would be satisfactory, and Kolkana replied
"Sure." Furino testified that, after the purpose of the meet-
ing was explained, Kolkana asked for an AWPPW repre-
sentative and Dauber explained "that, at that time, there
were no elected officers, no committee available." Furino
said he then suggested Zellner as a witness or a spokesman
for Kolkana, and Kolkana agreed. Dauber testified that,
after the purpose of the meeting was explained to Kolkana,
he asked for an AWPPW representative, and:
. . . I answered Mike that to my knowledge that
there was no one designated nor available for pur-
poses such as he requested, and that I was not aware
of whom I could contact, number one; and number
Apparently some Antioch employees participated while on leave, in or-
ganization of the San l.eandro plant. However, the position of those em-
ployees within the I nlon was not explained at the heanng.
1125
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
two, where to contact him; and number three, that I
did not feel that I was obligated to do so, under the
conditions that we were operating under, at that time.
Kolkana agrees that Zellner came into the meeting as a
"witness," that the purpose of the meeting was explained,
that Zellner read and later signed the letter of suspension
given to Kolkana, that Zellner asked about Respondent's
usual practice when giving suspensions, and that the prac-
tice was explained by Furino.
To the extent that Kolkana and Dauber testified differ-
ently, Dauber is credited.
Discussion
Some matters are not in dispute, or are abundantly clear
from the record: (I) Kolkana is not a stranger to Respon-
dent's disciplinary process. Repeatedly and often he has
been warned and disciplined about excessive absences,
sometimes in the presence of a union representative and
sometimes not. (2) The suspension of April 5 was justified,
so far as the merits of the suspension are concerned. (3)
Respondent did not act arbitrarily or in bad faith. The
closest AWPPW representative was 60 miles away, and
that representative had no relationship of any kind with
Respondent. Zellner, a known leader of the union move-
ment at Respondent's plant, was suggested to Kolkana by
Furino. (4) Kolkana readily and without any stated reser-
vation, accepted Zellner's presence. Kolkana neither sug-
gested nor asked for, any other person. (5) Zellner actively
participated in the meeting by listening to the reason for
the meeting, by asking about and listening to an explana-
tion of Respondent's practice relating to discipline, by ask-
ing for an explanation of the reasons for Kolkana's pro-
posed suspension, and by signing the letter of suspension.
(6) Kolkana knew that there was no AWPPW representa-
tive in Respondent's plant and that the nearest one was in
Antioch.
The basic right of an employee to have union representa-
tion in an interview he reasonably believes may result in
disciplinary action s is not an issue in this case. Respondent
long has recognized that right and has accorded it full re-
spect, both in contract and in practice. There is nothing in
the record to show that Respondent intended to, or did,
deny Kolkana's right to representation from a desire to
interfere with his Section 7 rights. Respondent was moti-
vated solely by practical considerations; the Union had no
representative in the plant when Kolkana asked for one.
The only question is whether or not Respondent was obli-
gated to do more than it did in acceding to Kolkana's re-
quest.
In agreeing in a later case with the Board's Mobil Oil
interpretation of an employee's right to representation in a
disciplinary proceeding, the Supreme Court of the United
States examined the nature of that right. In N.L.R.B. v.
Weingarten,9 the Supreme Court stated, inter alia, "Requir-
ing a lone employee to attend an investigatory interview
which he reasonably believes may result in the imposition
As explained in Mobile Oil Corporation, 196 NLRB 1052 (1972).
9 420 U.S. 251, 262 (1975).
of discipline perpetuates the inequality the Act was de-
signed to eliminate, and bars recourse to the safeguards the
Act provided 'to redress the perceived imbalance of eco-
nomic power between Labor and management.' American
Ship Building Co. v. N.LR.B., 380 U.S. 300, 316 (1965.)"
The United States Supreme Court did not define in
Weingarten the characteristics that an employee represen-
tative must have. However, the Board has made it clear
that there is no magic word or words to describe those
characteristics. It is not necessary that the employer pro-
vide for the employee the best representative possible. 10
Further, no particular title need be held by the representa-
tive; he may be no more than a witness, in a proper case."
Respondent herein did all it reasonably could be expect-
ed to do. Kolkana well knew and, further, was reminded at
the disciplinary hearing, that the Union had not designated
a plant representative for the employees. Kolkana then was
asked if Zellner would be satisfactory to sit in on the pro-
ceedings, and Kolkana replied "Sure." Kolkana knew that
Zellner was a union activist and a candidate for president
of the local. Zellner did not sit idly by and just watch the
proceedings; he participated by being informed of the na-
ture of the proceedings, by asking about past practice in
similar proceedings, by asking for an explanation of the
reason for Kolkana's proposed suspension, by reviewing
the proposed letter to Kolkana, and by signing that letter.
Clearly Respondent was not trying to take advantage of "a
lone employee" such as the one described by the United
States Supreme Court in Weingarten.
In the final analysis, it is apparent that Kolkana con-
tends the disciplinary proceedings should have been
stopped when he asked for a union representative. How-
ever, that argument is not available to Kolkana. Under
similar circumstances the Board stated in Coca Cola: 12
It is clear, as the Administrative Law Judge found,
that in keeping with its past practice Respondent
would have granted Torres' request and allowed Mur-
phy to be present during their August 15 meeting had
Murphy not been on vacation, and that Torres fully
understood that to be the case. Torres, nevertheless,
rather than requesting some other union representa-
tive, insisted on Murphy's presence. Thus, as the Ad-
ministrative Law Judge finds, Torres was in effect ask-
ing that the meeting be postponed from August 15 to
the following Monday, August 18.
In agreement with the Administrative Law Judge,
we find that there is nothing in the Supreme Court's
opinion in Weingarten which indicates that an em-
ployer must postpone interviews with its employees
because a particular union representative, here the
shop steward, is unavailable either for personal or
other reasons for which the employer is not responsi-
ble, where another representative is available whose
presence could have been requested by the employee
in the absent representative's place. Indeed, the Su-
10 International Union, United Automobile, Aerospace and Agricultural Im-
plemented Workers of America, UA W, and its Local 1331 (Chrysler Corpora-
tion), 228 NLRB 1446 (1977).
Glomac Plastics, Inc., 234 NLRB 1309 (1978).
t Coca-Cola Botling Co. of Los Angeles, 227 NLRB 1276 (1977 L.
1126
CROWN ZELLERBACH
preme Court was careful to point out that the exercise
by employees of the right to representation at an inter-
view may not interfere with legitimate employer pre-
rogatives. Certainly the right to hold interviews of this
type without delay is a legitimate employer preroga-
tive. The fact that "it would not have been a disaster"
to postpone the meeting to await Murphy's return is
therefore immaterial.
Our dissenting colleagues, nevertheless, characterize
Respondent's actions as a denial of the "help" to
which the employee was entitled. In fact, Respondent
never denied Torres' request; it was simply unable to
comply therewith. When Torres was informed of this
fact, he did not, as he could have, request alternative
representation. We see nothing in Weingarten which
implies that it is the employer's obligation to suggest
and/or secure alternative representation where the
representative originally requested by the employee is
unavailable. Therefore, in these circumstances, we dis-
agree with our colleagues that at this point the burden
shifted to Respondent either to stay the meeting or to
offer Torres a meeting without the steward or none at
all. [Footnotes omitted.]
General Counsel contends that Coca Cola is inapposite,
since it is factually distinguishable on two matters; (1) The
employee in Coca Cola specifically had requested the pres-
ence of a shop steward known by him to be unavailable.
(b) That same employee had failed to request the presence
of another union representative whose unavailability ap-
pears to have been unquestioned. General Counsel then
argues that the employee in Coca Cola did not make a
Weingarten request, since an alternate representative was
available to him. However, that argument avoids the hold-
ing in Weingarten, which specifically relates the reason for
the Weingarten rule. That reason is to preclude manage-
ment from overpowering "a lone employee" in a discipli-
nary meeting. Neither Weingarten nor any later Board case
states that, in the absence of any union representative, as
herein, an employee can insist that a union representative,
as opposed to a third party, be present. Kolkana was asked
about and received the presence of a fellow union member,
who was an influential union force within the plant. The
fact that Zellner did not bear the label "union representa-
tive" does not detract from the obvious conclusions to be
drawn from his presence. A logical question is, what would
a "union representative" have done for Kolkana that Zell-
ner did not do? The answer, so far as the record shows, is
nothing. Under such circumstances, it appears as though
Kolkana did in this case, the same thing Torres did in Coca
Cola. he asked for something he knew was not available in
order to avoid or to delay a disciplinary proceeding. Wein-
garten is not intended as a rule to permit the avoidance of
proper discipline; it is intended as a device to preclude
management from intimidating a "lone employee." Proper
application of the rule in this case requires finding that
Respondent did what is expected of it under Weingarten.
The contention that Kolkana was deprived of his Weingar-
ten rights because Zellner was only a "witness" is of no
effect. (a) Zellner readily was accepted by Kolkana. (b)
Zellner acted as more than a witness. (c) Zellner was a
competent representative. If Kolkana had thought that he
was entitled to more at the interview than Zellner's pres-
ence, he did not voice that thought; he did not suggest an
alternative to Zellner. It is apparent that Kolkana was ac-
corded the rights accrued to him under Weingarten.
CONCLUSIONS OF LAW
I. Crown Zellerbach, Inc., Flexible Packaging Division
is, and at all times material herein has been, engaged in
commerce within the meaning of Section 2(b) and (7) of
the Act.
2. Association of Western Pulp and Paper Workers
Union is, and at all times material herein has been, a labor
organization within the meaning of Section 2(5) of the Act.
3. Respondent did not violate Section 8(a)(l) of the Act
as alleged.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 1'
The complaint is dismissed in its entirety.
m In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings,
conlclusions, and recommended Order herein shall, as provided in Sec,
102 48 of the Rules and Regulations. be adopted by the Board and become
its findings. conclusions. and Order, and all objections thereto shall be
deemed wailed for all purposes
1127