Greyhound Lines, Inc.

National Labor Relations Board - Board Decisions

Dec 15, 1978

239 N.L.R.B. 849 (N.L.R.B. 1978)

GREYHOUND LINES. INC
Greyhound Lines, Inc. and Michael H. Mitchell. Case
8-CA- I 11132
December 15, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On August 23, 1978, Administrative Law Judge
Max Rosenberg issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting 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 brief
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.
The General Counsel, in effect, excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's established policy
not to overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Drs Wall Products.
Inc.. 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 19511. We have
carefully examined the record and find no basis for reversing his findings.
In affirming the Administrative Law Judge's Decision we do not adopt
any implication contained therein that an employee's failure to request
union representation at the outset of an investigatory interview constitutes a
waiver of the employee's right to request such assistance at some later point
during that interview. In the instant case. as found by the Administrative
Law Judge. the investigatory interview had ended before the Charging Party
made any request for assistance.
DECISION
MAX ROSENBERG. Administrative Law Judge: This pro-
ceeding was heard before me on January 12 and June 15,
1978, upon a complaint filed by the General Counsel of the
National Labor Relations Board and an answer interposed
thereto by Greyhound Lines, Inc., herein called Respon-
dent.' The sole issue raised by the pleadings relates to
The complaint, which issued on August 2. 1977. is based upon a charge
filed on June 28. 1977. and served on June 29. 1977
whether Respondent violated Section 8(a)(1) of the Na-
tional Labor Relations Act, as amended. by certain con-
duct to be detailed hereinafter. Briefs have been received
from the General Counsel and Respondent which have
been duly considered.
Upon the entire record made in this proceeding. includ-
ing my observation of each witness as he testified, I hereby
make the following:
FINDINGS OF FACT AND CONCLUSIONS
I THE BU SINESS OF RESPONDENT
Respondent, a California corporation with its principal
offices located in Phoenix, Arizona, and several district of-
fices situated throughout the United States. including the
office in Cleveland here involved, is engaged in the busi-
ness of providing interstate bus transportation to the pub-
lic. During the annual period material to this proceeding.
Respondent derived gross revenues in excess of $50,000
from such operations. The complaint alleges, the answer
admits, and I find that Respondent is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
II THE L ABOR ORGANIZATION INVOLVED
It is undisputed, and I find, that Local 1043, Amalga-
mated Transit Union, AFL-CIO-CLC, herein called the
Union, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III THE AI.IEGED UNFAIR IABOR PRACICES
The complaint alleges that Respondent violated Section
8(aXl) of the Act by refusing the request of employee Mi-
chael H. Mitchell for union representation during a meet-
ing with Respondent on January 7, 1977, which Mitchell
reasonably believed would subject him to disciplinary ac-
tion. Respondent denies that it engaged in any labor prac-
tices proscribed by the statute in its dealings with Mitchell
on that date.
Respondent operates a passenger bus service system
throughout the United States and, in the course of its oper-
ations, maintains terminals in various cities, including the
City of Cleveland. For many years. Respondent and the
Union have been parties to collective-bargaining agree-
ments covering the drivers at the Cleveland terminal which
contained provisions for the adjustment of grievances with
the last step culminating in three-party arbitration. Such a
W'hen tne hearing opened on January 12, 1978. the parties submitlled Into
evidence two grievances filed by Charging Party Michael H. Mitchell oin
January 14. 1977, against Respondent as well as correspondence between
Respondent and the Union signify.ng their willingness to process the mat-
ters pursuant to the grievance machinery set forth in the existing collectlve-
bargaining contract between the parties. By agreement of all parties. these
grievances were deferred to arhitration pursuant to Collver Insulated Hire, .4
Gulf and utrern Si tem, (Co. 92 NLRB 837 11971). On Februar 14. 1978.
the Union's exsutie board rejected Mitchell's request to proceed to arbilra-
tlon because Its treasure could not sustain the expense of the arbitrator's fee
Thereafter, on April 28. 1978. the General Counsel mosed to reopen this
prsceeding which motion, without opposition, was granted on Mao 16,
1978, and the hearing was resumed on June 15. 1978
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DECISIONS OF NA IONAL LABOR RELATIONS BOARD
contract containing those provisions was in effect at all
times material herein.
Since at least January 1976, Respondent has maintained
a policy of prohibiting the use of citizen band radios by its
drivers while they are on duty in order to insure passenger
safety. Because of repeated violations of this ban, Respon-
dent posted a notice on its drivers' bulletin board on May
28, 1976, which reminded the employees that "Any ipera-
tor observed making use of, or operating, a C.B. radio [in
his bus] . . . will be disciplined accordingly on a progres-
sive basis, up to, and including discharge." On June 3,
1976, Respondent issued a memorandum to all drivers
which recited that, henceforth, a mandatory disciplinary
program would be placed into effect providing for a 10-day
suspension from work for the first C.B. offense and a dis-
charge for the second. It is undisputed, and I find, that
Mitchell became aware of Respondent's prohibition
against the use of C.B. radios in its vehicles as early as
January 1976 when a driver named Valiante was disci-
plined in that month for such an infraction; and, in June
1976, Mitchell wrote a letter to Respondent's president
urging that the ban be lifted. Moreover, Mitchell admitted
that, prior to June 20, 1976, he had learned that "there was
going to be a severe crackdown on the uses of kit band
radios." Mitchell further admitted that, in October 1976, he
heard Respondent's District Manager Donald Bianchi
warn him and other operators that they would suffer a
10-day suspension or discharge if they were caught violat-
ing Respondent's C.B. radio rule. In sum, I am convinced
and find that Mitchell positively knew as early as January
1976, that Respondent's work rules forbade the use of C.B.
equipment by drivers while on duty, and that he was also
fully apprised by Respondent in June and October 1976
that he would be subjected to the mandatory discipline of
suspension or discharge for violating those edicts.
2
Inasmuch as Respondent's operators are called upon to
travel long distances without supervision, Respondent en-
gages independent road checkers to observe their driving
habits and deportment to insure that established safety
standards are maintained. On December 11, 1976, one of
these inspectors retained by Respondent covertly noticed
that Mitchel was operating a C.B. radio in his bus on a trip
from Cleveland to Toledo and turned in a report of this
incident to District Manager Donald Bianchi.
At 2:30 p.m. on January 7, 1977, Mitchell was sum-
moned to Bianchi's office. Although MItchell was unaware
of the purpose of this summons when he entered the office,
he was neither a stranger to that environment nor to the
authority which Bianchi wielded in monitoring and enforc-
ing Respondent's safety rules. Mitchell testified, and I find
that, from December 1975, to July 1976, he served as the
Union's driver representative, in which capacity he repre-
sented all drivers at grievance hearings with management.
2In his testimony, Mitchell feigned ignorance of Respondent's posting of
the notice of May 28, 1976, and the mandatory disciplinary program set
forth in the memorandum of June 3. 1976, claiming that he was on an
extended leave of absence from work due to illness at the time. While not
cnitical to a resolution of the issues presented herein. I do not credit his
testimony in this regard, not only because he failed to impress me with his
candor as a wit ess. but also because, by his own admission, his leave did
not commence until June 24. 1976.
During that span, he had been called to the office of Bian-
chi or his predecessor on almost 100 occasions regarding
grievances of operators, safety and service awards, or pas-
senger complaints. Moreover, Mitchell testimonially ac-
knowledged that he knew that Bianchi was Respondent's
"disciplining officer."
Upon entering the district manager's office, Bianchi an-
nounced to Mitchell that the former had received a report
from an independent checker who had ridden on Mitchell's
bus on December 11, 1976, that he had observed the driver
operating a C.B. radio during his run from Cleveland to
Toledo that day. According to Mitchell's own testimony,
this subject was broached by Bianchi at the immediate in-
ception of their meeting which lasted for almost 1 hour. As
Bianchi read the report, Mitchell took issue with its con-
tents and flatly denied the accusations contained therein,
claiming that the inspector had lied about the elements of
his observations. Despite the fact that he gave a sworn
statement to a Board agent during the investigation of this
proceeding more than 6 months later, in which he again
related that he did not operate a C.B. radio on the occasion
in question, Mitchell finally confessed on the stand that he
did not speak the truth to either Bianchi or to the Board
agent and that he had indeed used the radio on December
11, 1976, in violation of Respondent's work rules.
Mitchell further testified that, as the meeting with Bian-
chi progressed, he "decided just [to] deny everything from
that point on and wait until we had a full-blown hearing,"
and, at some juncture, he demanded that the checker be
summoned for a hearing on the matters contained in his
report. However, Mitchell then acknowledged on cross-ex-
amination that he was well aware that, pursuant to the
collective-bargaining agreement between Respondent and
the Union, Mitchell was not entitled to face his accuser
until the next (or second) step under the contractual griev-
ance procedure. Bianchi thereupon pulled from his desk
drawer the May 28, 1976, bulletin and the June 3, 1976,
memorandum which Respondent had posted and distrib-
uted to its drivers, and asked Mitchell to read them. When
Mitchell finished this chore, Bianchi announced that Mit-
chell was expected to conform to Respondent's safety
rules, and the operator agreed. According to Mitchell,
"During all this time he was very cordial about it and there
was no indication of anything. I had assumed that we
would agree upon a mutual time with the checker to go
over the report, to make sure everything was correct and
my position was clear. By the time I thought the interview
was over and I was getting ready to leave, Mr. Bianchi
said, 'Just a minute.'" Whereupon, Bianchi pulled out a
"Notice of Personnel Record Entry Form 6" from his desk
and proceeded to fill it in with the information derived
from his interview with Mitchell. It is uncontroverted, and
I find that, after Bianchi had completed 90 percent of the
form, Mitchell inquired, "Wait a minute, am I here for
disciplinary purposes?" and Bianchi answered in the affir-
mative. It is undisputed, and I find that, for the first time
during their entire discussion which lasted for almost I
hour, Mitchell requested that he be afforded union repre-
sentation. In deference to Mitchell's request, Bianchi ob-
tained the telephone numbers of the union hall and the
Union's current drivers' representative from Mitchell and
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GREYHOUND LINES, INC.
placed calls to these sources but received no response. At
this point, Mitchell again demanded the assistance of a
union representative. Having completed the personnel ac-
tion form, Bianchi informed Mitchell that the latter was
not entitled to union presence because the interview was
ended, and that the driver would be disciplined by a 10-
day suspension from work. During his examination, Mit-
chell conceded that, after Bianchi had commenced to write
up the C.B. infraction and after Mitchell had demanded
union representation, no further discussion of the C.B. in-
cident took place and he considered the interview termi-
nated. As Mitchell prepared to leave the office. Bianchi
proffered him the completed discipline form which Mit-
chell rejected. Subsequently, the document was mailed to
Mitchell's home and the 10-day suspension was imposed.
In N.L.R.B. v. J. Weingarten, Inc.,3 the Supreme Court
approved the Board's construction of Section 7 as investing
employees with a statutory right to refuse to submit with-
out union representation to an interview which they rea-
sonably fear may result in their discipline. In so doing, the
Court echoed the Board's concern expressed in Mobil Oil
Corporation 4 that:
. . . it is a serious violation of the employee's individ-
ual right to engage in concerted activity by seeking the
assistance of his statutory representative if the em-
ployer denies the employee's request and compels the
employee to appear unassisted at an interview which
may put his job security in jeopardy. Such a dilution
of the employee's right to act collectively to protect his
job interests is, in our view, unwarranted interference
with his right to insist on concerted protection, rather
than individual self-protection, against possible ad-
verse employer action.
However, the Court also noted that the Board had shaped
certain limits on that statutory right when it announced in
Mobil that:
the right [to union presence] arises only in situations
where the employee requests representation. In other
words, the employee may forgo his guaranteed right
and, if he prefers, participate in an interview unac-
companied by his union representative.
and that:
the employee's right to request representation as a
condition of participation in an interview is limited to
situations where the employee reasonably believes the
investigation will result in disciplinary action.
In her attempt to harbor Mitchell's plight within the pro-
tective ambit of Weingarten, the General Counsel has
danced a vertiable legal quadnlle. Recognizing that Mit-
chell had participated in the investigator) interview with
District Manager Bianchi for almost 1 hour during which
the merits of the checker's report were discussed, the Gen-
eral Counsel seeks to excuse his failure to request the
Union's presence on the ground that Mitchell had no rea-
1420 U.S. 251 (1975).
196 NLRB '052 (1972). And see Qual/r, .llanufiWtnlrln ( ,wmpant. 195
NLRB 197 (1972)
son to believe that disciplinary measures would be taken
against him either at the inception of or during the course
of his dialogue with Bianchi. While I am willing to accept
Mitchell's assertion that he was totally unaware of the rea-
son for his summons to Bianchi's office on the afternoon of
January 7, 1977, I am far from convinced that, when he
arrived, he remained ignorant either of the purpose for the
meeting or the punishment which lay in store. Mitchell tes-
tified, and I have heretofore found that, as early as Janaury
1976, he learned that Respondent maintained and enforced
a policy of forbidding the use of C.B. radios in its vehicles
during operational hours when fellow driver Valiante re-
ported to him that the latter had been disciplined for such
an infraction. Mitchell also admitted that he became aware
in June 1976 that "there was going to be a severe crack-
down on the uses of kit band radios," and further con-
fessed that Bianchi had told him and other drivers in Octo-
ber 1976 that they would be subjected to a 10-day
suspension or discharge if they were found violating Re-
spondent's rule prohibiting the operation of C.B. radios.
Moreover, Mitchell acknowledged on the stand that he had
persistently transgressed the rule for almost a year prior to
his meeting with Bianchi, and that he had, in truth and
fact, used his radio on December 11, 1976, as the indepen-
dent checker had reported to the district manager. Mitchell
further testified that, when the meeting with Bianchi
opened, the latter immediately informed the driver of its
purpose and forthwith launched into a systematic recita-
tion of the inspector's report. In light of these testimonial
admissions, I am convinced that Mitchell not only had rea-
sonable grounds to believe, immediately after he walked
into the room, that the investigatory session with Bianchi
could result in the imposition of a disciplinary suspension
from work, but that he actually knew that this consequence
loomed. I am persuaded and find that, despite Mitchell's
knowledge that the interview could result in disciplinary
action, he nevertheless elected to eschew his right to be
accompanied by a union representative at the session until
the interview had been terminated. As the Supreme Court
noted in Weingarten, an "employee may forgo his guaran-
teed right and. if he prefers, participate in an interview
unaccompanied by his union representative." In my opin-
ion, this is precisely the path which Mitchell voluntarily
chose to trod.
Taking an alternative stance, the General Counsel ar-
gues that, even though Mitchell was made aware at the
inception of the meeting with Bianchi that discipline might
flow, Mitchell nevertheless preserved his Weingarten rights
by making a timely request for union representation before
the session concluded. Whatever legal merit this posture
may possess, the facts do not fit into that argumentative
mold. If I understand her position correctly, the General
Counsel seemingly contends that the investigatory inter-
view did not end until Bianchi had finally completed and
proffered the disciplinary form 6 to Mitchell. This asser-
tion, however, is belied by Mitchell's own testimony that
no further discussion of the C.B. incident ensued after
Mitchell's demand for union presence, and by District
Manager Bianchi's uncontroverted testimony that the in-
terview had, so far as he was concerned, terminated with
his rejection of Mitchell's demand. In view of Mitchell's
851
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
confession that Bianchi refused the former's request for
union representation at which point the C.B. inquiry was
dropped, this happenstance is not unlike the situation
where an employer terminates an investigatory interview
after an employee refuses to answer any questions put to
him without the presence of his union representative. In
such a case, the Board has ruled that an employer does not
run afoul of the provisions of Section 8(a)(1) of the Act.5
In short, I find and conclude that, immediately after
Mitchell reported to Bianchi's office on January 7, 1977, he
became aware that he was charged with having operated a
C.B. radio in his bus in violation of Respondent's estab-
lished safety rules, and that the discipline of a 10-day sus-
pension from work without pay would ensue. I further find
that Mitchell, who had served as the drivers' representative
for an extended period of time and was fully cognizant of
his entitlement under the Act to obtain the immediate as-
Wlesiern Electric ('ronpanv,. Inc. 205 NLRB 195. fn 1 (1973).
sistance of the current union representative, elected to sail
his own boat. I find that only after Bianchi had refused to
accept Mitchell's admittedly false denials that he had vio-
lated company rules and concluded his investigation of the
matter did Mitchell suddenly change tack and demand a
nght to which he was no longer legally entitled. Accord-
ingly, I conclude that Respondent did not violate Section
8(a)(I) of the Act in its dealing with Mitchell on January 7,
1977, and I shall therefore dismiss the complaint in its en-
tirety.
ORDER 6
It is hereby ordered that the complaint herein be, and it
hereby is, dismissed in its entirety.
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.
conclusions, and recommended Order herein siall. 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 waived for all purposes.
852