Montgomery Ward & Co., Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 1226 (N.L.R.B. 1984)

1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Montgomery Ward & Company, Incorporated and
Joseph F. Steele. Case 32-CA-2797
14 December 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 8 October 1981 Administrative Law Judge
David G. Heilbrun issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, and the Respondent filed a reply
brief. On 16 December 1982 the National Labor
Relations Board remanded the proceeding to the
judge for additional findings of fact and credibility
resolutions. On 24 May 1983 the judge issued the
attached supplemental decision. The General Coun-
sel filed exceptions and a supporting brief, and the
Respondent filed a brief in support of the supple-
mental decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision, the sup-
plemental 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's investiga-
tory interview of Joseph Steele on 23 May 19801
was conducted in accord with the principles set
forth in NLRB v. J. Weingarten, 420 U.S. 251
(1975), and did not violate Section 8(a)(1). We dis-
agree.
Many of the facts concerning the Respondent's
23 May interview of Steele were undisputed. The
parties disagreed, however, on certain key issues.2
Certain of these issues were the subject of the
Board's remand order. A compilation of the cred-
ited evidence follows.
On 23 May Work Supervisor Joe Beggs took
Steele, an 11-year warehouse employee of the Re-
spondent, to one of the Respondent's offices.3
There Security and Safety Manager Roger Peter-
son and Chief Investigator Melvin Lee asked Steele
to sign a "Consent to Interview" form. 4 Steele
' All dates refer to 1980 unless otherwise stated
2 Steele was the only person to testify at the hearing The remainder of
the record is documentary evidence, including Steele's pretrial affidavit
and two grievance letters he submitted to the Respondent Discrepancies
between Steele's testimony and the documents required credibility resolu-
tions
3 The parties substantially agree about what transpired during the
interview The dispute centers on the interpretation of the "facts" and
their legal implications
4 The form provided
signed the document. Peterson then interrogated
Steele about the alleged theft of company property.
Early in the interview Steele asked that his
"work supervisor" be allowed into the interview.5
Peterson denied Steele's request, stating that he
could not see anyone and that a tape recording 6 of
the interview would serve as his protection.7
Peterson continued to interrogate Steele for
more than 2 hours. During the interview, Steele
was accused of stealing property from the ware-
house. Steele denied the charge. As the interroga-
tion continued, the Respondent made several refer-
ences to possible police involvement. At some
point the Respondent handed Steele a merchandise
catalog and told him to leaf through it. As he did
so, Peterson noted certain items contained on pages
at which Steele hesitated. Peterson then presented
Steele with the list of merchandise, stating that
Steele's hesitation demonstrated that he had stolen
the listed items.
Peterson totaled the costs for the listed items and
told Steele that, if he admitted his guilt and paid
for the items totaling $170.66, he might save his
job. Steele signed a statement admitting his guilt
and agreed to pay for the items. Steele was sent
home. On the following workday, Steele presented
the Respondent with a check for $170.66. He was
then discharged. Contrary to the judge, we find the
Respondent denied Steele his Weingarten rights
and, consequently, violated Section 8(a)(1).
The Supreme Court's Weingarten decision sets
forth several basic principles relevant to the instant
case. First, Weingarten applies to investigatory
interviews that an employee reasonably believes
I agree that representatives at Montgomery Ward & Co. Inc , may
interview me, commencing from the time designated below [11 37
a m ] on matters relating to company business
It is fully understood that I am free to leave this interview at any
time I so desire
5 In his original decision, the Judge limited his analysis to the finding
that Steele had asked to be represented by a "supervisor," within the
meaning of Sec 2(11) of the Act, and the conclusion that a request for
such a person was insufficient to Invoke Weingarten protections Because
we believed the Respondent's reply to Steele's request to be crucial, we
remanded the case to the Judge for appropnate findings
6 At the hearing the Respondent conceded that part of the interview
was taped Counsel for the Respondent, however, stated that the tape
was lost
7 We would have preferred that the Judge provided us a more precise
statement of the Respondent's reply to Steele's request than is contained
in the supplemental decision The Judge, however, did specifically find
that the Respondent replied "in a general sense any device that could
record and thus perpetuate spoken words would be representative of the
exchange then underway and intended to be continued " In addition, the
Judge specifically found in his original decision, and implicitly found in
the supplemental decision, that Steele's grievance letters most accurately
recited the 23 May events In each of these letters, as well as in his oral
testimony and pretrial affidavit, Steele stated that his request met with a
denial, the statement that he could not see anyone, and that the tape re-
cording would serve as his protection Accordingly, we specifically
credit Steele's testimony concerning the Respondent's reply to his re-
quest
273 NLRB No. 154
MONTGOMERY WARD & CO 1227
may result in his or her discipline. 8 Such an inter-
view occurred here. Secondly, the employee sub-
jected to the interview must request representation.
Third, when presented with a request, the employ-
er must either grant the request, present the em-
ployee with the option of continuing the interview
unrepresented or forgoing the interview altogether,
or deny the request and terminate the interview.
The second and third principles require examina-
tion here.
As stated above, Steele requested the presence of
his "work supervisor" at the interview. The Re-
spondent denied his request, stating that he could
not see anyone and that a tape recorder would
serve as his protection. The judge found that, be-
cause a supervisor is not a representative within the
meaning of Weingarten, Steele's request was "ster-
ile" and insufficient to invoke the Weingarten pro-
tections. The judge erred in analyzing the efficacy
of Steele's request without reference to the Re-
spondent's reply.
In determining whether an employee's request is
sufficient to invoke Weingarten protections, the
Board has held generally that the request must be
sufficient to put the employer on notice of the em-
ployee's desire for representation. Southwestern Bell
Telephone Co., 227 NLRB 1223 (1977). The Board
has also held, however, that when an employee re-
quests a representative who is unavailable, the em-
ployer can deny the request and is not required to
postpone the interview, secure an alternative repre-
sentative, or otherwise take steps to accommodate
the employee's specific request. The Board has
held that in such circumstances the employee has
the right and, indeed, the obligation to request an
alternative representative in order to invoke the
Weingarten protections. Coca-Cola Bottling Co. of
Los Angeles, 227 NLRB 1276 (1977).
Applying these concepts, we assume for pur-
poses of this decision that the person Steele re-
quested as a representative was a statutory supervi-
sor and ineligible to serve as a Weingarten repre-
sentative. Nevertheless, we find that Steele's re-
quest put the Respondent on notice that he desired
representation. That the Respondent knew of
Steele's desire for representation is reflected by the
response that Steele could see no one and that the
8 Member Hunter disassociates himself from any implication that un-
represented employees enjoy Weingarten nghts Member Hunter notes
that the employees in question in Weingarten were part of a unit repre-
sented by a union For the reasons set forth in his concurring and dissent-
ing position in Materials Research Corp, 262 NLRB 1010, 1021 (1982)
Member Hunter would not expand these nghts to cover unrepresented
employees In the present case, Member Hunter agrees that employee
Steele is entitled to the Weingarten protections since at the time of the
investigatory interview, Steele was a member of a bargaining unit repre-
sented by a union
recording would serve as his representative. 9 The
Respondent's reply was preemptive and effectively
prohibited Steele from making a further request for
representation. Accordingly, Steele was precluded
from exercising an employee right, recognized in
Coca-Cola, to request an alternative representative
after the employer lawfully denies an initial request
for a particular representative. In effect, the Re-
spondent told Steele that no matter who he re-
quested as a representative, he would have to be
content with a tape recording of the interview. In
short, we find that Steele's request, in light of the
Respondent's preemptive denial, was sufficient to
invoke the Weingarten protections.
The Respondent failed to exercise any of the le-
gitimate options available to it after denying
Steele's request for representation. Instead, the Re-
spondent subjected Steele to a 2-hour interrogation
replete with threats of police involvement and job
loss that trained security officers conducted using
sophisticated interrogation techniques." In the
interview, the Respondent succeeded in obtaining a
signed "confession" and Steele's agreement to pay
for allegedly stolen items, apparently in exchange
for an implied promise to consider letting Steele
keep his job. With the "confession" in hand, the
Respondent terminated Steele after accepting his
payment. Thus, the Respondent blatantly violated
the Weingarten protections.
THE REMEDY
In Taracorp, Inc., 273 NLRB 221 (1984), the
Board established the appropriate remedial scheme
for violations of Section 8(a)(1) arising out of un-
lawful Weingarten interviews. In that decision, the
Board held that a make-whole remedy is inappro-
priate and that the proper remedy is that normally
prescribed for violations of Section 8(a)(1). Ac-
cordingly, we shall order the Respondent to cease
and desist from the activity found unlawful herein
and take certain affirmative actions designed to ef-
fectuate the policies of the Act.
9 The Board has held on several occasions that it is not the prerogative
of the employer to determine whether an employee needs representation
at a Weingarten interview See Lennox Industries, 244 NLRB 607, 608
(1979), and cases cited therein at fn 6
" In his supplemental decision, the judge sought to establish that
Steele was not actually coerced during the interview The absence of
actual coercion is wholly irrelevant in the context of Weingarten Ac-
cordingly, we do not find it necessary to pass on the judge's finding that
the interview was noncoercive We do, however, specifically disavow
any implication in the supplemental decision that Steele's signing the
"Consent to Interview" form waived his Weingarten rights or otherwise
indicated that Steele participated in the interview voluntarily See Mont-
gomery Ward ii Co , 254 NLRB 826, 831 (1981)
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The National Labor Relations Board orders that
the Respondent, Montgomery Ward & Company,
Incorporated, San Leandro, California, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Requiring that employees participate in inter-
views or meetings when the employees have rea-
sonable grounds to believe that the matters to be
discussed may result in their being disciplined and
where representation at those interviews or meet-
ings has been denied.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Post at its San Leandro, California facility
copies of the attached notice marked "Appen-
dix."" Copies of the notice, on forms provided by
the Regional Director for Region 32, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(b) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
" If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT require that employees participate
in interviews or meetings when the employees have
reasonable grounds to believe that the matters to
be discussed may result in their being disciplined
and where representation at those interviews or
meetings has been denied.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7
of the Act.
MONTGOMERY WARD & COMPANY,
INCORPORATED
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge. This
case was heard at Oakland, California, on July 23, 1981,
based on a complaint alleging that Montgomery Ward &
Company, Incorporated (Respondent) violated Section
8(a)(1) of the Act by denying the request of Joseph F.
Steele for "the presence of a representative" during an
investigatory interview conducted May 23, 1980, as to
which there was reasonable cause to believe that discipli-
nary action against Steele would result, and thereafter on
May 29, 1980, discharging him in consequence.
On the entire record, my observation of the only wit-
ness called, and consideration of posthearing briefs, I
make the following
FINDINGS OF FACT AND RESULTANT CONCLUSION
OF LAW
Steele was employed as a warehousemen by Respond-
ent for 11 years, and was a member of the bargaining
unit represented by Warehouse, Mail Order and Retail
Employees Union, Local No. 853, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America.' In late morning of
May 23, 1980, his immediate supervisor Joe Beggs ad-
vised Steele to go with him to an office about 300 feet or
more from his normal work place. 2 During the approxi-
mate course of 5 minutes while walking there Steele re-
peatedly asked Beggs why he was being brought in and
who the "Mr. Sweet" was that he was expected to see.
The question was begged off on the basis of Beggs lack-
ing helpful knowledge. On arrival at the office Steele
was presented to Security and Safety Manager Roger
Peterson and Chief Investigator Malvin Lee, the former
of whom proceeded to interrogate Steele about ware-
house thievery. This followed the initial act of obtaining
Steele's signature on a "Consent to Interview" document
reading:
I agree that representatives at Montgomery Ward &
Co., Inc., may interview me, commencing from the
1 Respondent operates retail department stores nationally and in the
course and conduct of its business operations derives gross revenues in
excess of $500,000 Its office and place of business in San Leandro, Cali-
fornia, is the only facility here involved, and as to this location Respond-
ent annually purchases and receives goods or services valued in excess of
$5000 which originated outside California On these admitted facts I find
that Respondent is an employer engaged in commerce within the mean-
ing of Sec 2(6) and (7) of the Act, and otherwise that Teamsters Local
853, named more fully above, is a labor organization within the meaning
of Sec 2(5) of the Act
2 All dates and named months hereafter are in 1980, unless shown oth-
erwise
MONTGOMERY WARD & CO. 1229
time designated below [11:37 a.m.] on matters relat-
ing to company business.
It is fully understood that I am free to leave this
interview at any time I so desire.
The interview lasted nearly 2 hours with repeated accu-
sations of Steele's having stolen things, and his at first
resolutely denying it. Ultimately, the merchandise catag-
logue was handed to Steele with a request that he leaf
through it. He did so and on pausing at certain pages Pe-
terson aggressively insinuated that this signified guilt as
to items on such a particular page. Slowly, Steele pas-
sively conceded that his pauses did not associate to
stolen items, though secretly repudiating it in his own
mind. A short list of apparel and consumer goods was
then prepared with attendant dollar value totaling to
$170.66, and Steele signed it below an introductory state-
ment admitting to appropriation of what was marked. A
second document was signed 15 minutes later in which
Steel printed out his supposed actions in more detail,
stating remorse and a desire to make restitution. He was
thereupon suspended by Peterson and, on return to the
premises on May 29, he paid Respondent $170.66 and
was promptly terminated on the basis of a management
decision which Peterson said was not made by him.
Steele testified to various matters that superimpose on
this chronolgy. He recalled that when the episode com-
menced Peterson elaborated on the "Consent to Inter-
view" by saying that it authorized use of a tape recorder
which would be Steele's "protection." In fact, the inter-
view was not taped. Additionally, Steel twice tried to
leave during the interview, but on both occasions was
dissuaded when Peterson stated that to do so would lead
to police involvement and possible arrest. Steele testified
that he thrice asked "to have somebody present at the
interview," but this approach was consistently denied by
Peterson, who kept alluding to a tape recording as
Steele's "protection and my representative."
Following his termination Steele caused certain docu-
ments to be sent to Respondent. A grievance statement
dated June 5 set forth Steele's version of background as
including that the interview experience was emotionally
distressing to him, and caused him to ask "if I could see
one (1) of my work supervisors, to find out what was
going on." In a later document dated July 1, rebuttting
an employer grievance response, Steele emphasized how
he had "asked (more than once) to see one of my super-
visors in order to find out what was going on." In this
document Steele added that to him his request had meant
seeing a "shop steward." Steele's steward then was Glen
Erspamer, a person he had helped win office in the
Local Union by his vote. Other than this Steele had not
participated in union affairs during the 11 years of his
membership, nor was he even acquainted with any busi-
ness agent.
This case invokes NLRB v. J. Weingarten, 420 U.S.
251 (1975). Of its progeny Southwestern Bell Telephone
Co., 227 NLRB 1223 (1977), is most nearly in point
where an employee request "to have someone there that
could explain to me what was happening" evoked a su-
pervisory response that "if the Union were called in it
would be out of their hands and there would be nothing
they could do to protect the employees' jobs." In such
context I find from probative evidence that Steele did
not make an effective request for. representation within
the doctrine or intendment of Weingarten. I believe the
testimony of Steele is so unreliable as to be valueless. He
carried an unpersuasive demeanor while testifying, and
on a more objective basis was evasive and contradictory
in what he advanced from the witness stand. His offer-
ings may be characterized as "generally confused," a
condition expressly noted by the Board in approving re-
jection of uncontradicted testimony merely on the basis
of 'demeanor observation. Plasterers Local 32 (McCrory &
Co.), 223 NLRB 486 (1976). See also Teamsters Local 959
(Northland Maintenance), 248 NLRB 693 (1980). I be-
lieve Steele's testimony was utterly contrived, a conclu-
sion made even more compelling on noting the admission
that he was made aware of entitlement to a vague
"someone" at the interview only after it was over when
"people came up and told me."
The truth about Steele's critical utterances is found ex-
clusively in documentation originating from him shortly
after the episode. Such nearly contemporaneous writings
are properly a source of fact, particularly when oral tes-
timony is discreditable and the prior signed or adopted
statements containing a substantially different version
were made in spontaneity and candor. See Snaider Syrup
Corp., 220 NLRB 238 (1975); Cf. Kern's Bakeries, 227
NLRB 1329 (1977). Further, I reject Steele's hyperbo-
lized claim of harboring fear and intimidation during the
'interview, noting that no objective showing was made
about such being inculcated and that by Steele's own de-
scription the "shop steward" routinely intervened during
interrogations of employees Miles, Sanders, and Lyons.
I thus find Steele's only request for guidance or assist-
ance was that Beggs, his "work supervisor," appear and
participate in the interview. This specifically contrasts
with Southwestern Bell, in which an unartfully voiced re-
quest for representation was parried with express super-
visory reference to whether it was tactically wise to in-
volve "the Union" in an institutional sense. 3 The focus
on Beggs meant a sterile request under Weingarten, for
its carefully structured precepts contemplate only that
pertinent representation by a labor organization or its
a The General Counsel argues Anchortank, Inc., 239 NLRB 430 (1978),
and Crown Zellerbach, Inc., 239 NLRB 1124 (1978), in asserting that
Weingarten rights are to be liberally construed in the "lone employee" sit-
uation. Both cases are distinguishable. The context of Anchortank was
that material events occurred prior to a union's certification, thus leaving
employees without a statutory representative at the significant point in
time. This was found not to impair an employee's right to "some measure
of protection when faced with a confrontation with the employer which
might result in adverse action." Having divined this "primary concern"
in Weingarten, the Board held in Anchortank that a valid request in fulfill-
ment of Sec. 7 rights could involve either a representative of the union
not as yet certified "or simply that of [a] fellow employee." The course
of this rationale makes ineffectual. Crown Zellerbach is similarly unavail-
ing, for there the issue was simply how to dovetail Weingarten rights
with the new representative status of a freshly certified union, as to
which the parties had "no customary practice or procedure . . . relating
to discipline of employees." In such a case the utilization of a principal
advocate for the just-successful union was confirmed, and the General
Counsel's rather esoteric argument that the interviewed employee's
knowing assent to witnessing by this competent fellow employee of rank-
and-file persuasion still failed to fulfill Weingarten was rejected.
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
counterpart might contribute to the fulfillment of rights
under Section 7 of the Act. 4 Accordingly, I render a
conclusion of law that Respondent has not violated the
Act as alleged, and issue the following recommended
[Recommended Order for dismissal omitted from pub-
lication ]
4 Respondent's decision not to call Peterson as a witness is immaterial
when a prima facie case has not been made out Further, my holding
makes It unnecessary to reach the alternative theory of waiver which was
briefed by both parties This theory associates with use of the Consent to
Interview form, a technique also found in Montgomery Ward & Co. 254
NLRB 826 (1981) In view of the immateriality, no treatment is required
of Montgomery Ward, supra
SUPPLEMENTAL DECISION
DAVID G. HEILBRUN, Administrative Law Judge. On
December 16, 1982, the Board issued its Order remand-
ing this matter "for the purpose of preparing and issuing
a Supplemental Decision setting forth findings of fact
and resolutions of credibility concerning Respondent's
statements including the precise nature of Respondent's
denial of Joseph F. Steele's request that his work super-
visor be allowed to be present to assist him during the
interview of Steele conducted by Respondent on May
23, 1980." The Board pointed to subsumed questions,
which it termed "unclear . . . and potentially crucial,"
of "whether Steele was coerced into continuing with the
interview after his request for aid was denied and what
response was given to Steele, if any, beyond denial of his
request that a work supervisor be present." Methodology
used in reaching further determinations pursuant to the
Order chiefly includes review and comparison of docu-
mentary evidence, further scrutiny of testimony as given
by sole witness Steele, and reflection on the demeanor
characteristics exhibited as he testified on July 23, 1981,
in terms of any overall semblance of plausibility. This ap-
proach has, in turn, been associated to the several lines
of analysis set forth in the Board's Order. Thus, an inte-
gration was formulated to render the new findings of
fact and conclusions of law that are now required to sup-
port a further recommended Order.
In more closely accessing the particulars of Steele's
concededly investigatory interview, it is first noteworthy
that the grievance letter dated June 5, 1980 (appended to
a grievance form dated June 6, 1980), was the first spon-
taneous description by Steele of what he had experienced
2 weeks earlier. This letter was the work of an unnamed
friend, who exhibited considerable skill in written com-
position. On its face the letter is suitably organized, con-
tains a thrust beyond merely stating the contractually
based grievance, and has an impressive rhetorical quality.
It is also true that a detailed version of the investigatory
interview is set forth, and Steele both had expressly
adopted it at the time and reaffirmed it when he testified.
With respect to the questions about which the Board
solicits more precise factual findings, the first is whether
coercion was present as the investigatory interview un-
folded. Here Steele's adopted grievance letter of June 5,
1980, traces his original entry to the room in which the
episode occurred and the approximate 1-1/2-hour period
to follow. However, it is immediately evident that a de-
scription akin to what my first decision termed "hyper-
bolized" perceptions is offered as reality of the situation.
Thus, this "Grievance Background" commences with a
reference to the "confront[ationl" by two or three men;
however, Steele's testimony on such points reveals no
recollection that Chief Investigator Lee ever spoke at all
during the entire interview, and that a third man did not
appear until a later point when the merchandise cata-
logue was brought into the process. As to taping of the
investigatory interview, an evidentiary point that bal-
ances Respondent's counsel's stating how "at least a part
of the interview" was recorded is Steele's recollection
that to his own knowledge the tape recorder was not
turned on and operating.1
The continued description is of a flood of accusations2
and Steele's growing distress as he experienced feelings
of restriction and fear of police involvement. A further
direct reference in the grievance letter of June 5, 1980, is
to Steele's spoken request for his work supervisor 3 and
the response by the interrogator that he could not see
"anyone," with the additional comment that the tape re-
corder would serve as his representative Given that Su-
pervisor Beggs had civilly escorted Steele to the inter-
view room, 4 that Steele could not name a second union
steward for his work location, that his signed "response"
(dated July 1, 1980) to the Employer's "grievance rebut-
tal" alludes to asking for "one of my supervisors . . .
more then [sic] once," and that he termed his desire as
that of wishing to have the interview process softened
with a "friendly face," I find that Steele clearly and re-
peatedly termed his request for assistance as to be that of
a supervisor and from this Respondent's representatives
routinely rejected this as an inappropriate intrusion on
the security function by saying that nobody of that ca-
pacity was to complicate the interview, and that in a
general sense any device that could record and thus per-
This assertion is one of several in which Steele's veracity is in doubt,
for his investigatory affidavit plainly refers to the tape having been
"turned on"
2 The exact reference is to "rapid fire questions from all directions",
however, this overwise disturbing scenario is at total odds with Lee's
being shown as making no utterances at all and the absence of any refer-
ence to remarks by the third unknown person
3 This is the most salient point as to which Steele is discredited, for his
contradictory testimony was not satisfactorily explained nor did his de-
meanor when denying that a work supervisor had been requested by him
display an interest in truth on the point
4 No finding is extant of whether Beggs is a supervisor within the
meaning of Sec 2(11) of the Act or, as the Board pointed out could be
the case, merely a "regular employee [carrying] such a title " While there
is little which is indicative of Beggs' actual functioning, what is known is
that as a subordinate Steele was paid an $8 59 hourly rate as a receiving
clerk plus generally working 3 hours weekly overtime, that Beggs au-
thoritatively left his work area to walk an employee on what amounted
to an approximate 10-minute passage of time for his own round trip, and
that Steele showed some apprehension over whether or not he was being
called in because of "mistakes I may have made as a new employee in the
Receiving Department" Such indications are that Beggs actually respon-
sibly directed others in a manner more than routine, and requiring use of
independent Judgment in such fulfillment The Board's experience with
this Employer shows it to be sufficiently structured that, when all in-
volved persons allude to a "work supervisor" in this type of facility, the
Incumbent is by all odds a statutory supervisor On this basis I now find
Beggs to have possessed that status at material times Cf Montgomery
Ward & Co, 217 NLRB 165, 166 (1975)
MONTGOMERY WARD & CO. 1231
petuate spoken words would be representative of the ex-
change then underway and intended to be continued.
I find that no coercion was present in regard to
Steele's continuation with the interview, in part because
at its very outset he signed a statement which plainly af-
firmed his understanding of being truly able "to leave
. . . at any time." 5 Steele's grievance rebuttal' response
dated July 1, 1980, seeks to neutralize the significance of
this understanding in its point No. 6; however, none of
the five subpoints does more than reiterate what a sum-
moned employee would ordinarily expect. On the ques-
tion of police involvement, the last assertion of such
point No. 6 refers to police notification, but without any
showing that it was more than routine reference when-
ever theft is the subject matter of discussion. This is an-
other example of inconsistency in Steele as a source of
facts, for his earlier grievance letter of June 5, 1980, and
his investigatory affidavit both state that he was told of
potentially being "take[n]" to the police.6
5 An identical "Consent to Interview" document was involved in
Montgomery Ward & CO., 254 NLRB 826 (1981), and there analyzed only
in terms of whether it constituted a waiver of Weingarten rights. Of three
interviewees which that case treated, all of whom signed the writing
before individual interview with auto service center secunty and safety
personnel, one (Kamin) made no request for representation whatsoever,
yet proceeded to list $1303 in cash and merchandise as his response to
the management official's request for details of what he was "responsible
for stealing." Further, when the process was over and admitted to in a
signed statement, the employee implicated another individual on being
asked about his knowledge of any additional engagement in theft. The
implicated person, along with another, both made clear and unequivocal
requests for union representation subsequent to signing the Consents to
Interview there, and the coercive circumstances found to have existed
during these respective interviews did not in any manner relate to this
document Itself.
° Steele's oral testimony varies still more in its reference to "police
action and stuff like that," which is the explanation in terms other than
his being taken to the police. I note that the final documents signed by
Steele when the interview terminated emphasized how "possible prosecu-
tion" was not precluded or limited, and believe from this that a definite
susceptibility toward suggestiveness has clouded Steele's ability to truly
recall just what was said to him on the point. These circumstances em-
phatically contrast with a person undergoing interview being told that
police would be "waiting [at] home" should he leave, or countering the
plain request for a union representative to assist by saying that instead the
police would be called. Montgomery Ward, supra at 829-830.
In sum, I find that Steele experienced a firm, appropri-
ate coaxing out of guilt, that the consequences of his ap-
parent conduct were referred to only in a balanced
manner, and that his contention after the episode ended
that he had really felt rooted in place throughout and
unable to exercise the simple free will of walking from
the room is but a contrived afterthought which was fos-
tered out of an unworthy attempt to avoid the plain con-
sequences of his acts. I am satisfied that these disordered
thoughts arose later on May 23, 1980, when Steele was
visited at home by two fellow employees, and the entire
matter of a sweeping security crackdown based on impli-
cations the day before was discussed among these three
persons in a context laden with surmise, chagrin, and a
grasping for exoneration.
The Board's remand also alluded to the "legal" issue
of Respondent's being put on notice of an employee's
desire for representation, with Columbus Foundries, 229
NLRB 34 (1977), and Illinois Bell Telephone Co., 251
NLRB 932 (1980), cited as among the progeny of Wein-
garten. In Columbus Foundries the individual seeking to
intervene during an investigatory interview was a union
committeeman, while in Illinois Bell a fellow employee of
the interviewee was turned away even though the actual
union steward had instructed that such a person be
called on if necessary when, as was the case, there was
no access to this same union steward because of differing
work shifts. On these bases I consider both Columbus
Foundries and Illinois Bell distinguishable and without
relevance to the issue of what puts an employer on
meaningful notice that appropriate representation is de-
sired before an employee submits to an investigatory
interview. With the facts here being that Steele's only re-
quest was for a work supervisor, the fuller credibility
resolution above has no impact on such collateral "legal"
issue.
Accordingly, I reaffirm my earlier conclusion of law
that Respondent has not violated the Act as alleged, and
again recommend that the Board dismiss the complaint in
its entirety.