Joseph F. Whelan Co., Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 340 (N.L.R.B. 1984)

340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Joseph F. Whelan Company, Inc. and Charles T.
Wiltse. Case 29-CA-10004
14 December 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 30 June 1983 Administrative Law Judge
Steven Davis issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that the Respondent violated
Section 8(a)(1) of the Act by discharging employee
Wiltse for refusing to participate in a disciplinary
interview without a union representative. Contrary
to the judge and for the reasons set forth below,
we find that the Respondent acted lawfully when it
discharged Wiltse for refusing to obey an order to
go to the manager's office without a union repre-
sentative.
During Wiltse's 6 years of employment as a
truckdriver for the Respondent, he had received
eight written warnings. He received four of these
warnings in the 10 months before his discharge on
10 June 1982, two of which stated that the Re-
spondent would take other action against him if his
poor work performance continued and the third
stated that the Respondent was asking for a hearing
at which it would request permission to discharge
him for poor work performance. After the fourth
warning, there were two hearing sessions in April
and May 1982 about the Respondent's request to
discharge Wiltse, and a third session was scheduled
for late June.
On 9 June 1982 a customer where Wiltse was
supposed to be making a delivery called Respond-
ent Manager Cotter to complain that Wiltse was
not with his truck so it could not be unloaded.
Cotter asked the customer to have Wiltse call
when he returned. When Wiltse called about 15
minutes later, he told Cotter that he had taken his
lunch break from 1 to 1:30 p.m., even though the
customer's employees took their lunch breaks from
12:30 to 1 p.m., because he believed he was not al-
lowed to stop for lunch until that time under the
contract. Cotter said that Wiltse was wrong about
the lunch hour provisions of the contract and that
he should have called the office when he took a
different lunch period from the customer's employ-
ees. Wiltse said he did not know that rule. Cotter
said it had always been the rule that you should
call because "you just don't walk away from the
truck when the warehouse is operating." Cotter
ended the conversation by telling Wiltse to get
back to his truck, unload it, and "I'll show you to-
morrow, you're wrong about this lunch hour."
On 10 June 1982, at the morning "shape" where
drivers' work assignments were made, Cotter
handed Wiltse his work assignment book and told
him to come into the office next to the drivers'
room. Wiltse asked if shop steward Sorensen was
there. Cotter said he was not. Wiltse said he would
not go into Cotter's private office for a talk with-
out Sorensen being present. Cotter said that if
Wiltse did not come into the office he could not
work. Wiltse again refused to enter the office.
Cotter then took Wiltse's work book, and Wiltse
left the Respondent's terminal. That day, Cotter
sent Wiltse a letter stating he was discharged be-
cause of his actions on 9 June at Krasdale Foods
and on 10 June at the Respondent's facility, "when
you refused an order to come into the office to co-
operate with the company in straightening out the
previously mentioned incident at Krasdale."
The judge found that, on most of the other occa-
sions when Wiltse received written warnings,
Cotter had asked Wiltse during the morning
"shape" to come into the office for a talk. Each
time Wiltse went into Cotter's office, where the
shop steward was waiting, and discussed the inci-
dent with Cotter and the steward. Then Cotter
handed Wiltse a written warning a few days later.
Based on this past practice and on the scheduled
hearing about the Respondent's request to dis-
charge Wiltse, the judge found that Wiltse reason-
ably believed the 10 June interview might result in
disciplinary action against him. Relying on the Su-
preme Court's Weingarten decision,' the judge con-
cluded Wiltse was entitled to have a union repre-
sentative present at this interview, and, therefore,
the Respondent violated Section 8(a)(1) of the Act
when it discharged Wiltse for refusing to partici-
pate in the interview without a union representa-
tive.
Significantly, the judge found that the Respond-
ent fired Wiltse "only for his refusal to enter the
office." 2 We agree. Based on this finding, we con-
clude that the Respondent acted lawfully under
Roadway Express. 3 In Roadway Express, we stated
NLRB v J Weingarten, 420 U S 251 (1975)
2 JD, sec II,B, par 12
Roadway Express, 246 NLRB 1127 (1979)
273 NLRB No. 51
JOSEPH F WHELAN CO

341
that an employer does not first have to assure an
employee that his representative will be present at
a meeting in order to induce the employee to leave
the - plant floor. Thus, if the employer, as here, asks
the employee to leave the work area to go to an-
other location where further discussion can occur
in private, the employee acts at his peril if he de-
clines to do sb. 4 In this case, Wiltse's refusal to
report to the office as directed by Cotter clearly
undermined the Respondent's right to maintain dis-
cipline and order, especially as it occurred in the
drivers' room while Cotter was making work as-
signments. Although Wiltse was entitled to refuse
to participate in an interview in the absence of the
requested representation, he was not privileged to
ignore the Respondent's order, to report to the
office . in an attempt to compel the Respondent to
conduct its business in the work area. Accordingly,
we find that the Respondent did not violate the
Act when it discharged Wiltse for refusing to obey
an order to go to the office, and we shall dismiss
the complaint.
ORDER
The complaint is dismissed.
4 United States Steel Corp, 253 NLRB 593 (1980)
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Pursuant
to a charge filed on October 6, 1982, by Charles T
Wiltse, a complaint 'was issued by Region 29 of the Na-
tional Labor Relations Board on November 30 against
Joseph F. Whelan Company, Inc (Respondent). The
complaint alleges that Respondent violated Section
8(a)(1) of the Act by discharging Wiltse on June 10 be-
cause he requested that a union representative be present
for a disciplinary interview, and because he refused to
participate in such interview without a union representa-
tive.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the brief filed by Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation, having its prin-
cipal office and place of business at 439 West 54th Street,
New York, New York, and a truck depot at 400 Western
Avenue, Staten Island, New York, is engaged in provid-
ing transportation and related services. During the year
ending December 1981, it derived gross revenues in
excess of $50,000 from services performed for Proctor &
I All dates are in 1982 unless otherwise stated
Gamble Company, Inc., located in New York, which
company annually produces goods valued in excess of
$50,000 which it ships directly out of the State in which
it is located 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 Truckdriv-
ers Local Union No. 807, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (the Union), is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A Facts
1. Background
Wiltse, hired by Respondent on April 19; 1976, as a
truckdriver, has been a member of the Union during his
employment there
Wiltse has had a very poor work record. During his 6
years of employment he has received 8 written warning
notices which set forth the details of such alleged infrac-
tions as having several traffic accidents which caused
damage to the truck and failing to orally report an acci-
dent; taking excessive time while unloading the vehicle
at certain stops and also between such delivery stops;
writing false, later times of deliveries on his worksheet in
order to make it appear that it took longer to make cer-
tain deliveries than it actually took; taking excessive
overtime; stopping for coffee during work hours; failure
to note on a receipt why all the items scheduled for de-
livery to a customer were not delivered, failure to travel
by the most direct route between deliveries; failure to
call the office if delayed at a delivery stop; driving with
the brakes on, causing damage to two tires, inability to
properly park the truck, ignoring the instructions of a
mechanic, thereby causing the truck to stall which result-
ed in a mechanic being sent to fix the truck.2
Robert Cotter, Respondent's manager of the Staten
Island facility, handed Wiltse the warning notices at the
terminal 3 About 1 to 3 days prior to the delivery of
each warning notice, Cotter, during the morning shape,
on handing Wiltse his assignment book for the day's
work, asked him to come into the office because he
wanted to talk to him. 4 On each occasion, Wiltse entered
Cotter's office where he spoke with Cotter and the shop
steward concerning the incident. About 1 to 3 days after
the meeting, a warning notice concerning the incident
discussed was delivered to Wiltse
It should be noted that the warning letters of Septem-
ber 1 and October 2, 1981, contained the following ad-
monition.
2 The notices are dated September 15, 1976. February 17, 1978, March
26 and September 25, 1980. September 1 and October 2, 1981, and Janu-
ary 15 and March 23, 1982
3 The parties' Collective-bargaining agreement provides that the warn-
ing letter must be issued within 7 days of the incident involved
4 However, on one or two occasions, ,the shop steward told Wiltse that
Cotter wanted to speak with him and, on another occasion. Cotter began
talking to Wiltse alone but then stopped the conversation and he (Cotter)
called the steward in so that he could be a party to the conversation
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If this poor work performance continues or if there
are any other violations" of the labor agreement by
you we will take other action against you.
_ 2. The events of 1982
The warning letter of January 15 specified incidents
involving excessive time in unloading the truck at Re-
spondent's terminal: failure to call the office when de-
layed at a customer; ignoring a mechanic's instructions,
and causing the truck to stall, which resulted in Re-
spondent incurring the time and expense of having a me-
chanic service the broken truck in the field. The letter
ended with the following:
Your work performance has not improved as you
have been warned in the past. Your attitude seems
to be that the company will just have to go along
with whatever you do or say you have done, that
whatever amount of time you take will have to be
accepted, that whatever the costs are none of your
concern. We are therefore asking for a hearing for
permission to discharge you for poor work perform-
ance
The parties' collective-bargaining agreement contains a
provision whereby the Company may ask for an arbitra-
tion hearing at which permission is requested to dis-
charge an employee. Generally, the employee continues
working until the arbitrator issues a decision as to wheth-
er the employer may properly discharge the grievant 5
On March 23, a warning letter was given to Wiltse.
The letter related an incident in which his trailer hit a
bridge, causing a hole in the trailer's roof. The letter
criticized his carelessness in striking the bridge; his fail-
ure to examine the damage to determine whether the
roof was torn, thereby exposing the cargo to possible
precipitation; and failing to immediately orally ieport the
damage.
A hearing on Respondent's request for permission to
discharge Wiltse was held on three separate dates, the
last session being held on June 24 The General Counsel
claims that, at the April 8 hearing, the arbitrator directed
Respondent to . retain Wiltse during the pendency of the
hearing. "Respondent disputes this. The transcript of the
hearing is unclear on this issue. 6 I need not resolve this
dispute inasmuch as I do not believe that it affects my
ultimate resolution of this case. It is fact, in 'any event,
that Wiltse was discharged on June 10, prior to the .last
arbitration hearing date which took place on June.24.
On June 9, Wiltse was assignethto make a delivery to
Krasdale Foods. About 1:20 p.m. that day the receiving
manager at Krasdale called Cotter, complaining that the
5 By retaining the employee until the decision, the employer avoids li-
ability for backpay .which it would have incurred if it had first fired the
employee and then later received a decision that the discharge was not
justified
6 The arbitrator said the following at different parts of the hearing
MR CHAIRMAN Leave [sic] him work until I hear the case I
mean that is my ruling You request to discharge the mail Now,
somebody has been postponing this, but I don't know what side
MR CHAIRMAN Either you discharge him, or I am going to let
him work Because he has go to work until you request for dis-
charge
driver was not with his truck. She said she 'would not be
responsible for any detention charges Cotter asked the
manager to have Wiltse call him. About _1:35 p.m Wilte
called and told Cotter that the Krasdale employees took
their lunch period from 12:30 to 1 p.m. but he could not
stop for lunch then because, inasmuch, as he started work
at 9 a.m. that day, he believed that he could take a
lunchbreak only between the fourth and sixth hour, so
that the earliest he could take lunch would be 1 p.m.
Wiltse accordingly took his lunch period from 1 to 1:30
p.m. Cotter replied that Wiltse was Wrong about his
lunch period being between the fourth and sixth hour,
and was also wrong in not calling the office when he
took a lunch period different from that which the cus-
tomer's employees take. Wiltse responded that he did not
know that that was the rule and asked which rule
number he was referring to. Cotter said that it had
always been a rule. "Everybody calls in. You just don't
walk away from the truck when the warehouse is operat-
ing." The conversation continued for a few_ minutes and
Cotter finally told Wiltse: "Look, they're irate up there.
Get back to the truck, and we'll straighten [this] out to-
morrow. Just get that load off now, and I'll show you
tomorrow, you're wrong about this lunch hour."
The following day, June 10, at the morning shape,
Cotter gave Wiltse his work assignment and book and
told him to come into the office. 'Wiltse asked if Eddie
Sorensen, the shop steward, was there. Cotter said he
was not. 7 Wiltse refused to go into Cotter's office.8
Cotter told Wiltse that if he did not come into the office
he could not work Wiltse again refused to enter, Cotter
took the wOrk book from Wiltse and Wiltse left
That day Cotter sent a letter of discharge to Wiltse
which stated. . .
This is to inform you that you are hereby dis-
charged because of your actions of June 9, 1982 at
Krasdale Foods and June 10, 1982 at Staten Island
when you refused an order to come into the office
to cooperate with the company in straightening out
the previously mentioned incident at Krasdale
• On June 24 the final arbitration hearing was held, and
on July 20 the arbitrator issued his decision in which he
found that Respondent had just cause to discharge Wiltse
on June 10. The arbitrator's conclusion is as follows:
After hearing all- of the testimony offered at this
hearing, the undersigned is persuaded that the
grievant wants to do everything his way regardless
of what his way is going to do to the Company, the
labor agreement, promulgated rules of operation or
the Union By several of his self-willed acts he was
•posited just- cause for his own discharge by the
Company.
7 Sorensen was not at work that day
Wiltse claims he told Cotter that he would not go into Cotter's pri-
vate office for a talk without Sorenson being present I credit his state-
ment
JOSEPH F. WHELAN CO 343
Therefore, I rule that the discharge of the griev-
ant by the Company was for just cause and is
hereby sustained.
B. Analysis and Discussion
The General Counsel alleges that Wiltse was dis-
charged on June 10 because he requested that a union
representative be present for a disciplinary interview and
because he refused to participate in the interview 'with-
out a union representative being present, in violation of
his rights as set forth in NLRB v. J. Weingarten. 9 Re-
spondent contends that the requested June 10 meeting
was only for the purpose of explaining the contractual
provision concerning lunch hours to Wiltse, and was a
routine and informal meeting not requiring the presence
of a union representative Respondent argues that Wiltse
was not discharged for refusing to attend the meeting
without a steward, but rather was discharged for refus-
ing to participate in the meeting in which he was to be
shown that he was mistaken as to his understanding of
the contract relating to lunch . periods.
In Weingarten, the Supreme Court held, in agreement
with the Board, that employee insistence on union repre-
sentation at an investigatory interview, which the em-
ployee reasonably believes might result in disciplinary
action against him, constitutes protected concerted ach y
-ity.Io
I believe that the evidence is clear that Wiltste reason-
ably believed that the interview that Cotter requested on
June 10 might result in disciplinary action."
On June 9, when the dispute arose" over Wiltse's fail-
ure to take the proper lunch period, and his failure to
call Respondent when he took a lunchbreak different
from that which the customer's employees took, it was
clear, as Cotter conceded, that Wiltse was taking exces-
sive time because he stopped work between 12 30 and 1
p m., and also took his 30-minute lunchbreak between 1
and 1 . 30 p.m." In the past, Wiltse had been accused of
taking excessive time, for which he was called into Cot-
ter's office, discussed the matter with him in the presence
of the shop steward, and had also, shortly after the meet-
ing, received a warning letter regarding his taking exces-
sive time. Moreover, the collective-bargaining agreement
states that theft of time "is recognized as an offense for
which severe disciplinary measures may be invoked."
9 420 U S 251 (1975)
10 The complaint alleges that the unlawful discharge occurred because
of Wiltse's request for a union representative at a "disciplinary" inter-
view The distinction between disciplinary and investigatory interviews is
of no moment since the Board has held that "the full purview of protec-
tions accorded employees under Weingarten apply to both 'investigatory'
and 'disciplinary interviews, save only those conducted for the exclusive
purpose of notifying an employee of previously determined disciplinary
action " Baton Rouge Water Works Co, 246 NLRB 995, 997 (1979)
" The test for determining whether an employee reasonably believes
the interview might result in disciplinary action is measured by objective
standards under all the circumstances of the case rather than by an em-
ployee's subjective motivations, Weingarten, supra at 257 fn 5 I accord-
ingly sustain Respondent's objection to a question asked of Wiltse as to
why he asked for the presence of steward Sorensen on June 10 I have
therefore not considered nor relied on Wiltse's subjective answer to the
question in making my findings and conclusions herein
12 Vv'iltse was only entitled to take 30 minutes for lunch
Two of the prior warning letters" which involved ex-
cessive time cautioned that "if this poor work perform-
ance continues or if there. are any other violations of the
labor agreement by you we will take other action against
you" Wiltse apparently believed that it was necessary to
answer , three of the warning letters concerning excessive
time, and he did so by writing responses with attached
documentary evidence on April 3 and .October 7, 1980,
and September 9, 1981. Wiltse therefore took these warn-
ing notices seriously enough to attempt to rebut their al-
legations which is an indication that on June 9, when
Cotter told him he would speak with him the following
day, Wiltse reasonably believed that discipline might
result from the interview.
It should' be noted that Wiltse had also received a
warning letter in the past regarding his failure to call the
office when there was a delay at a customer. On . June 9,
Cotter accused Wiltse of a similar offense failing to call
in when he took a different lunch hour from the custom-
er's employees, thereby causing a delay Cotter conceded
that he would have spoken to Wiltse about that issue on
June 10 also.
Furthermore, when Cotter requested his presence at a:
meeting on June 10, Wiltse was "at risk" Respondent
had already requested permission to discharge him and
two arbitration hearing sessions had already been held on
his discharge, the last one only 3 weeks earlier, and the
final hearing to be held only 2 weeks later, on June 24.'4
In addition, the June 10 request for a meeting with
Wiltse followed the past pattern of such interviews. The
request occurred at the morning shape; the steward was
present at the interview which took place in Cotter's
office; the interview related to some wrongdoing by
Wiltse immediately prior to the meeting; and the session
was followed by the issuance of a warning letter 1 to 3
days later incorporating the matters discussed at the
interview. Respondent argues that there have been occa-
sions in the past where Cotter spoke alone with Wiltse.
However, such occasions, as testified by Cotter, all in-
volved incidents of alleged malfeasance by Wiltse, and as
to which he could have requested the presence of 'a
steward but apparently did not do so as was his right.
Thus, objectively viewing the circumstances which
Wiltse confronted when requested to meet with Cotter -
on June 10, we see that (a) he was accused on June 9 of
theft of time, an offense recognized in the contract pun-
ishable by "severe disciplinary measures," and for failing
to report a delay at a customer, as to both of which he
had received warning letters in the past, (b) he was told
on June 9 that he was to talk to Cotter the following day
about these matters, (c) the past practice had been that
13 The warning letters are dated September l 'and October 2, 1981
14 Respondent argues that the fact that Wiltse was given the right by
the arbitrator to remain at work until a decision was issued leads to the
conclusion that he could not have reasonably believed that he would be
discharged until such time However. Weingarten requires only that the
employee reasonably believe that the interview might result-In discipline
As set forth above, Wiltse reasonably believed that the interview might
result in discipline and it did—his discharge that day Moreover, he was
discharged in part as set forth in the letter of June 10, for the June 9
incident for which the interview was sought—prior to the Issuance of the
arbitrator's decision
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when a request for -interview was made in the circum-
stances in which it was made on June 10, the interview
had been with the steward present, was concerned with
his alleged incompetence, and was followed by the issu-
ance of a warning letter, and (d) he was "at risk" in that
a request had already been made for his discharge and
two arbitration sessions had already been held. •
Under these circumstances, the evidence is- over-
whelming that on June 10, Wiltse reasonably . believed
that the interview might result in disciplinary action, and
he therefore had a right to have a steward present at the
interview.i5
On June 10, when Cotter asked Wiltse to come into
the office, Wiltse asked if Sorensen, the shop "steward,
was there. Cotter said he was not." Wiltse refused to go
into Cotter's office without Sorensen present 17 Cotter
told Wiltse that if he did not come into the, office he.
could not work. When Wiltse again refused, Cotter took
the assignment book from him -
In this circumstance, the Employer had the choice of
giving the employee time or a postponement to obtain
the representation or, as the Supreme Court pointed out:
in J. Weingarten, 420 U.S. - at 258-259 (adopting the
Board's statement in -Mobil Oil, supra, 196 NLRB at
1052), of "advis[ing] the employee that it will not pro-
ceed with the interview unless the employee is
to enter the interview accompanied by his representative.
The employee may then refrain from participating in the
interview, thereby protecting his right to representation,
but at the same time relinquishing any benefit which
might be derived from the interview. The employer
would then be free to act on' the basis of information ob-
tained from other sources." Respondent did none of
these things."
In its letter of June 10 to Wiltse, Respondent stated
that he was discharged: "because of your actions of June
9, 1982 at Krasdale Foods and June 10, 1982 . . . when',
you refused an order to come into the office to cooper-
ate with the Company in straightening out the Previously
" I reject Respondent's argument that the June 10 interview was only
for the purpose of explaining the contractual provisions, relating to lunch'
period to Wiltse, to correct his misunderstanding of the contract, and 'to.
prevent further similar incidents Wiltse was not advised of this-when
Cotter requested that he go into the office on June 10 Moreover, the
extreme form of discipline—discharge—was Imposed on Wiltse in part
according to the June 10 letter for the June 9 incident Northwest Engi-
neering Co. 265 NLRB 190 (1982), relied on by Respondent, is inappo-
site That case involved a "general shop meeting, informational in.
nature," to review work rules,- at which all the employees were present
The purpose of the meeting was stated at the outset, "it did not relate to
any one specific employee or to any single instance of purported miscon-
duct or deficiency in performance," and no discipline was Imposed In
contrast, the Instant case involved a situation where only Wiltse was
asked to go Into the office for a private meeting with Cotter He was not
told that the purpose of the meeting was to explain the contractual provi-
sions relating to the lunch period The purpose of the meeting clearly
was to discuss his wrongdoing of the previous day, and discipline was
imposed
18 Sorensen was not at work that day There was no evidence as to
whether alternate shop steward Freddie O'Neal was available
17 Cotter agrees that Wiltse refused to come into the office I credit
Wiltse's statement that he refused to speak to Cotter without union repre-
sentation In view of Wiltse's reasonable belief that the interview would
result in discipline, it is manifest that he would have expressly refused to
enter unless Sorensen was present
18 Super Valu Xenia, 235 NLRB 1581, 1591 (1978)
mentioned incident at Krasdale." At the, hearing, when
asked by the General Counsel why he discharged Wiltse,
Cotter replied: "Because he refused to come in and let
me show him that he was wrong in his interpretation of
this lunch hour." Indeed, the circumstances of the dis-
charge lead me to agree that Wiltse was fired only for
his refusal to enter the office." Inasmuch as Wiltse had
a right to have a union representative present at the
interview, his refusal to engage in the meeting without a
representative present, and his discharge for doing so is a
violation of Section 8(a)(1) of the Act.2°
CONCLUSIONS OF LAW
1. Respondent Joseph F. Whelan Company, Inc. is,
and at all times material herein, has been, an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. 'Respondent violated Section 8(a)(1) of the Act by
discharging Charles T. Wiltse on June 10, 1982, because
Wiltse requested that a union representative be present at
an interview which he reasonably believed might result
in disciplinary action against him and because Wiltse re-
fused to participate in said interview without a union
representative.
3 The aforesaid unfair -labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
In cases where an employee has been discharged for
refusing to participate in an interview conducted in dero-
gation of his Section 7 right to a representative, a make-
whole remedy is appropriate. 21 However, in this case,
the General Counsel states that he does not claim that
Wiltse's later discharge, as found by the arbitrator in his
decision issued on July 20, 1982, was violative of the
Act. Accordingly, the General Counsel does not seek re-
instatement for Wiltse, and seeks backpay only for the
period from June 10 to July 20, 1982 22
I therefore recommend that Respondent be ordered to
make Wiltse whole for any loss of earnings he may have
suffered as a result of the discrimination against him
from June 10 to July 20, 1982. 22 The amount of backpay
12 Respondent could not have immediately discharged Wiltse for'theft
of time since the contract states that such an offense is not a ground for
immediate discharge Moreover, Wiltse had been similarly accused of
such wrongdoing in the past but had not been fired on the spot for that
reason before
20 Ladies Garment Workers Union v Quality Mfg Co. 420 U S 276
(1975)
21 Salt River Valley Water Users' Assn, 262 NLRB 970 (1982) -
22 The complaint allegations are consistent with these contentions of
the General Counsel I need not therefore reach the question of whether
the arbitrator's award meets the criteria set forth in Spielberg Mfg Co.
112 NLRB 1080 (1955)'
23 I reject Respondent's contention that the backpay period should be
reduced because of Wiltse's failure to provide the arbitrator with a tran-
script of the hearing in a timely manner Wiltse requested that his attor-
ney engage a court reporter to record and transcribe the June 24 arbitra-
tion hearing The arbitrator required that a copy of the transcript be sent
to him On July 14, 1982, Wiltse's attorney advised the arbitrator that the
transcript "would not be forthcoming and the Impartial Chairman should
not wait any longer before rendering his award" The arbitrator issued
Continued
JOSEPH F WHELAN CO 345
shall be computed in' the manner set forth in E W. Wool-
worth Co., 90 NLRB 289 (1950); With interest thereon to
his decision on July 20 In the absence of proof that any delay in the arbi-
trator's Issuance of his decision was caused by Wiltse's . failure to provide
a copy of the transcript as promised, I cannot find that the backpay
period should be limited There was no evidence that *there was any
be -computed , in the manner prescribed in Florida Steel
Corp., 231 NLRB 651 (1977).24
[Recommended' Order omitted from publication.]
delay in the issuance of the award Thus, the arbitrator was advised on
July 14 that he would not receive the transcript and it was mit until July
20 that the award was issued
24 See generally Isis Plumbing Co, 138 NLRB 716 (1962)