Southwestern Bell Telephone Co.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 663 (N.L.R.B. 1984)

SOUTHWESTERN BELL TELEPHONE CO , 663
Southwestern Bell Telephone Company and Commu-
nications Workers of America, AFL-CIO,
Local 6310. Case 14-CA-16558
14 . December 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 27 September 1983 Administrative Law
Judge Th6mas D. Johnston issued the attached de-
cision. The Respondent filed exceptions and a sup-
porting 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 brief and has
decided to affirm the judge's rulings, findings,' and
conclusions 2 and to adopt the recommended Order
as modified.
The judge found, and we agree, that the Re-
spondent violated Section 8(a)(1) of the Act under
NLRB v. J. Weingarten, 420 U.S. 251 (1975), by de-
nying employee Daniel Reed's requests for union
representation at an investigatory interview Reed
reasonably believed might result in disciplinary
action against him. As a remedy for the violation,
the judge, applying Kraft Foods, 251 NLRB 598
(1980), recommended that the Respondent be re-
quired to make whole employee Reed for any loss
of pay resulting from the Respondent's suspension
of him for alleged misuse Of company property.
However, in Our recent decision in Taracorp Indus-
tries, 273 NLRB 354 (1984), we overruled Kraft
Foods and held that Section 10(c) of the Act pre-
cludes a make-whole remedy for Weingarten viola-
tions where the discipline of an employee is for
cause. 3 Accordingly, consistent with Taracorp, we
The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility- resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are Incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 The judge concluded that the Board will not defer a case to arbitra-
tion which involves a violation of Sec 8(a)(1) At the time of his deci-
sion, United Technologies Corp, 268 NLRB 557 (1984), which holds oth-
erwise, had not yet Issued However, no exceptions were filed to this
conclusion In addition, no exceptions were filed to the judge's conclu-
sion that the Regional Director did not abuse his discretion by refusing to
, approve A settlement agreement entered into by the parties
3 As further explained in Taracorp, discipline is "for cause" within the
meaning of Sec 10(c) if it is Imposed for some reason other than an em-
ployee's protected concerted activities Since it is clear in the present
case that employee Reed was not disciplined for asserting his right to
union representation in the investigatory interview, but for alleged misuse
of company property, his discipline was "for cause" within the meaning
of Sec 10(c) and a make-whole remedy is therefore precluded
shall modify the judge's recommended Order to
delete the make-whole and expunction remedies
and shall order the Respondent to cease and desist
from depriving any employee of his right to union
representation at an investigatory interview which
the employee reasonably believes might result in
disciplinary action. We shall further order the Re-
spondent to post an appropriate notice.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Southwestern Bell Telephone Company,
Union, Missouri, its officers, agents, successors, and
assigns, shall take the action set forth in the Order
as modified.
1. Delete paragraphs 2(a), (b), and (c) and relet-
ter the subsequent paragraphs accordingly.
2. Substitute the attached notice for that of the
administrative law judge.
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 our employees to partici-
pate in employer interviews or meetings where
they have reasonable grounds to believe that the
matters to be discussed may result in their being
the subject of disciplinary action and where we
have refused to permit them to be represented at
such interviews or meetings by their labor organi-
zation.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
SOUTHWESTERN BELL TELEPHONE
COMPANY
DECISION
STATEMENT OF THE CASE
THOMAS D. JOHNSTON, Administrative Law Judge
This case was heard at St Louis, Missouri, on July 19,
1983,' pursuant to an amended charge filed on April 152
I All dates referred to are in 1983 unless otherwise stated
2 The original charge was filed on March 15
273 NLRB No. 95
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Communications Workers of America, AFL-CIO,
Local 6310 (the Union), and a complaint issued on April
19.
The complaint alleges that Southwestern Bell Tele-
phone Company (the Respondent) violated Section
8(a)(1) of the National Labor Relations Act (the Act) by
denying employee Daniel 'Reed's request to be represent-
ed by the Union during an interview which Reed had
reasonable cause to believe might result in disciplinary
action, and suspended Reed as a result of information re-
ceived from him during the interview and after his re-
quest for representation had been made, thereby interfer-
ing with, restraining, and coercing its employees in the
exercise of the rights guaranteed them by Section 7 of
the Act.
The Respondent in its answer, which was amended at
the hearing, denies having violated the Act as alleged.
While it admits it suspended Daniel Reed about January
18, it denies it suspended him as a result of information
obtained from him during the interview or that Reed had
requested representation or that such request had been
denied.
The issues involved are whether the Respondent vio-
lated Section 8(a)(1) of the Act by discriminatorily deny-
ing Reed's request for union representation during an
interview which he had reasonable cause to believe
might result in .disciplinary action and suspended him as
a result of information received from him during the
interview after he had requested such representation
On the entire record in this case and from my observa-
tions of the witnesses and after due consideration of the
briefs filed by the General Counsel and the Respondent,3
I hereby, make the following4
FINDINGS OF FACT
•I THE BUSINESS OF THE RESPONDENT
Respondent, a Missouri corporation with an office and
place of business located at St. Louis, Missouri, and with
other places of business located in the State of Missouri,
including a facility located at Union, Missouri, which is
the only facility involved in this proceeding, is engaged
in the telephone communications industry. During the
calendar year 1982, a representative period, the Respond-
ent in the course of its operations received revenues in
excess of $100,000, of which revenues excess of
$100,000 were received for providing interstate telephon-
ic communications to its customers
Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Communications Workers of America, AFL-CIO,
Local 6310 is a labor organization within the meaning of
Section 2(5) of the Act.L
3 The Charging Party did not submit a brief
4 Unless otherwise indicated the findings are based on the pleadings,
admissions, stipulations; and undisputed evidence contained in the record,
which I credit
III. THE UNFAIR LABOR PRACTICES
A. Background
The Respondent is engaged in the telephone communi-
cations industry and has a facility located at Union, Mis-
souri. Included among its supervisory personnel are Dis-
trict Manager of Outside Plant Construction Eugene En-
right, Assistant Staff Manager of Security Francis Clark,
and Network Service Supervisor Lawrence Pnchard.3
The employees of the Respondent employed at that fa-
cility are represented by the Union. .
Daniel Reed, the discriminatee, who has been em-
ployed by the Respondent for ,approximately 14-1/2
years, works as a lineman at the Union, Missouri con-
struction facility. From 1976 to February 1983 he
worked under the direct supervision of Supervisor Pri-
chard. His duties include placing and removing pole lines
and cable drops and his work involves the use of a com-
pany bucket truck which he uses daily. Reed is. also a
member of the union and has served as a union steward
at the Union, Missouri. facility for about 5 years repre-
senting the linemen and splicers.
B. Denial of Reed's Request for Union Representation
and His Suspension-
An anonymous unsigned letter purportedly from a
telephone customer, dated July 9 and addressed to Dis-
trict Manager Enright, was sent to the Respondent ac-
cusing Reed, who it suggested be investigated, of ripping
off the Company for years. It mentioned seeing him on
numerous occasions using a company truck drilling post
holes for his fencing, using the bucket fruck for trimming
trees, and unloading and stacking telephone poles _ he
would bnng in and later sell. The letter further stated
Reed had a company ladder, leaning against a tree, a new
pole with an CB antenna attached, and mentioned , that
someone else believed Reed's electric - fence posts were
also company equipment. The letter further related the
customer's telephone bills 'had kept increasing and the
Company had said it needed more money for increased
costs and suggested if the labor force was better con-
trolled costs should and could decrease and indicated the
letter might help.
District Manager Enright, who is a third-line supervi-
sor and supervises approximately 223 employees includ-
ing 36 first- and second-level managers, testified that on
January 17 on receiving and reading this anonymous
letter, which was postmarked January 13 but had been
misdirected, he felt the allegations, if true (that Reed
used Company trucks to dig post holes and to trim trees,
and had obtained used poles to sell and had a company
ladder and a new telephone pole for , a CB , antenna),
would violate company rules.
Under the Respondent's policies, as expressed in its
booklet entitled "A Code of Business Conduct," and the
section pertaining to "Company Property," which had
been in effect for at least 4 years, company property is
not to be used for personal benefit, or any other improp-
er purpose and, except with proper authorization, it
5 These three individuals are supervisors under the Act •
SOUTHWESTERN BELL TELEPHONE CO 665
should not be sold, loaned, given away, or otherwise dis-
posed of regardless of condition or value The booklet
also indicates -violations of such company policies can
lead to disciplinary action, dismissal, and prosecution.
The contents of this booklet are reviewed annually with
the Respondent's employees and Reed, who admitted
having read it, acknowledged in writing as required by
Company policies that such review was last held with
him on May 20, 1982.
That same day Enright contacted Assistant Staff Man-
ager of Security Clark and informed him about the letter
and the following day, January 18, they together drove
out to Reed's farm and made a visual inspection from the
road. According to both Enright and Clark they ob-
served various items of company property or what ap-
peared to be former company property on the farm
which , were items Reed would have had occasion to
work with as a lineman-. These included two sheave
block; a stack of 25 to 40 poles varying in length from
25 to 40 feet; a lubricating or vehicle ramp constructed
out of telephone poles; what appeared to be a new tele-
phone pole by the house with a CB antenna attached;
rope similar to that used by the Respondent hanging
from a tree limb; a stack of poles 8 to 10 feet in length;
an electric fence for cattle constructed out of 40 or 50
ground rods; 6 a fence and a fenced in area constructed
of about 80 to 100 'old used telephone poles; a - loading
dock constructed out of fairly good size class stubs from
poles; a'yellow fiberglass ladder with a stenciled-on crew
number leaning against the house; and three dead-end
arms 7 which appeared to be new.
Enright testified following-their visit to Reed's farm he
contacted Reed's immediate supervisor, Supervisor Pri-
chard, read him the anonymous letter, and questioned
him about its contents. After Prichard denied any knowl-
edge of the allegations contained in the letter, Prichard
stated that Enright instructed him to have Reed report to
the central office at Union, Missouri, which -he did.
That same day, January 18, District Manager Enright,
Assistant Staff Manager Clark, Supervisor Prichard, and
Reed met in the basement meeting room at the central
office, which Reed described as a room which was used
for grievance and disciplinary meetings where he had
previously represented other employees, as their union
steward.•
Reed testified Enright began the meeting by asking
him if he had ever used company trucks to trim his trees
at his house. According to Reed, having been asked this
question, he thought he was in trouble because when he
looked at Prichard, who he contends had given him per-
mission to use the company truck to trim trees, 8 Pri-
chard gave him a shrug like he did not know anything
about it and he knew he was on his own, whereupon he
then said he needed union representation. Enright re-
sponded by telling Reed that he was the union steward
and that should be good enough. Enright then continued
to question him about whether he had trimmed trees on
6 Enright acknowledged the Respondent did not recover ground rods
used in construction but instead drove them underground
This is the arm thatdead ends the wire on the telephone pole
8 Pnchard denied at the heanng that he ever gave Reed permission to
use company property or equipment for his personal benefit
his property with the company vehicle whereupon he
admitted he had used the bucket truck once to trim the
trees on his lunch hour 2-1/2 years ago, but he said he
had permission to do so. Enright, after questioning
Reed's assertion about doing the work on his lunch hour,
explained he had a letter and what it accused Reed of
doing and said he and Clark had gone out to Reed's
home that morning where they saw a large pile of used
poles and crossarms, a lot of discarded company equip-
ment, and an old company ladder , leaning against the
house. Reed explained that equipment had all been given
to him or he had taken it with permission and it was not
stealing like Enright was trying to insinuate. On En-
right's mentioning the ladder was worth over $150 and
that constituted a felony, Reed explained he took it out
of the junk pile at least 5 years ago and that the crew
number stenciled on the ladder would verify how old it
was. 8 After discussing the ladder, Reed stated he told
them he thought they were headhunting and said he
needed union representation Enright responded by
asking Read was he not the union representative for
Union, Missouri When Reed replied he was, Enright
continued questioning him by asking him who authorized
him to take the hugh pile of old poles which were
stacked beside the road. His response was every first line
foreman he had worked for let the linemen, telephone
people, or the general public, take poles out of the pole
yard" when they were brought in and he explained he
probably had first crack at them because he pulled them
and knew when they came in and that he had permission
and could still get foremen to testify to that. During the
meeting Reed also admitted about 8 to 10 years ago he
used a company post hole digging truck to place two
poles in a vehicle ramp he built on his property.71
Enright then -asked Reed for permission to seach his
property and , said since he had admitted taking the
ladder, which constituted a felony, if Reed would not
give him permission he would go to the county judge
and get a search warrant and search his property. Al-
though Reed first refused permission after Enright told
him if he did not he would have to press criminal
charges against him to get the search warrant because
that was the only way he could get it and Reed would
be up for a felony. Reed stated he decided that his best
defense was to let Enright come -down and see what was
there because he did not have anything to hide.
Before signing a statement given to him to sign author-
izing Clark and Prichard to search his property and vehi-
cles," Reed stated he again asked for union representa-
9 According to Reed, Clark later obtained the correct crew number on
the ladder which venfied It belonged to a man who had been gone for 5
years
'° Bill Konecnik, another employee, testified the past practice was that
used telephone poles were up for grabs by anyone who wanted them and
they would notify their supervisor, or the linemen would just take them
home
" According to Reed, his foreman at the time, John Palisch, who did
not testify, had given him permission to use the truck on that occasion
" The statement dated January 18, which was signed by Reed and
witnessed by Enright, contained in pertinent part the following sentence
"No threats or promises have been made to force me to submit to this
search for property of Southwestern Bell Telephone Company" Reed
Continued
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion. When Enright replied that he would give him a
minute to get his union representative there, Reed stated
he went ahead and -signed to let them search because
there was no telephone in the room and he did- not see
any way he could get a representative there that fast.
Reed, during the hearing, denied, except for the two
occasions he admitted during the interview, using the
company trucks for his personal use and specifically
denied using the company truck to set his antenna pole.
Reed testified the approximately 100 ground rods used in
constructing his electric fence had been obtained from
dismantling jobs. These rods had been junked by the Re-
spondent and he had asked all of his foremen whether it
was all right to take them. His foremen had also given
him permission to take the old telephone poles which he
had also obtained in the process of -wrecking out pole
lines. Reed denied the antenna pole or any other poles or
crossarms on his property were new and stated that the
ladder was manufactured by the Louisiana Ladder Com-
pany about 1973 and he had obtained it about 1977. Reed
explained that as he wrecked cables or transferred poles
he took the used bolts , that held the cables on the tele-
phone poles home or put them in the -trash at the Com-
pany from which they were then -dumped and covered
over with dirt by a trash hauler.
District Manager Enright gave a different version of
this meeting. According to him he began the meeting by
telling'Reed what he had tO cover with him was difficult
because he had difficulty in understanding anybody who
would write a letter and not sign his or her name. How-
ever, there were some allegations in the letter which bor-
dered on company assets being so to speak manipulated
and made inferences about Reed's conduct off the job
and accused him of using company vehicles and having
company property. He then, after also mentioning he had
been out tO Reed's farm that day, said he would like to
cover some of the pertinent questions and would like to
have Reed answer them. After looking at both Clark and
Prichard, Reed commented it looked to him like lie was
in a little trouble whereupon he told Reed he did not
regard it as trouble but said he needed answers to some
questions. When Reed inferred that he would like to
have some help he asked Reed was he not the union
steward. On Reed replying he was the union steward but
for construction he informed _Reed that it was a con-
struction matter that he would like to discuss -with him.
After Reed pondered awhile and shrugged his shoulders,
he again asked Reed if he would answer the questions
and Reed nodded affirmatively. Following this he men-
tioned there was some serious allegations in the letter
that Reed had used certain materials and vehicles to per-
form work on his farm- and he mentioned the letter had
said on numerous occasions he was observed using a
company truck to dig holes and to set poles and asked
Reed if he had done that. Reed replied he had but said it
was on his lunch hour. After questioning Reed about
doing it on his lunch hour, he told Reed it did not make
explained at the heanlig he had no recourse but to sign the statement
even though it said no threats had been made to force him to sign be-
cause they had threatened to have him arrested for a felony or to be
taken before the judge
any difference whether it was on his lunch hour or not
because it was unauthorized use of company property to
perform work for his personal gain. However; on asking
Reed whether he had permission Reed replied he had
and looked at Prichard and said they knew about it. Pri-
chard then denied he gave Reed or other employees per-
mission to use company equipment
Enright then mentioned the letter inferred Reed had
used the bucket trucks to trim trees and asked Reed
whether he had done that, whereupon Reed again admit:
ted he had but said it was on his lunch hour. He again
told Reed that he needed permission to do that and it
was misuse of company property to perform work for
his own benefit.
According to Enright, he did not think they ever iden-
tified when Reed said he used these vehicles.
Reed was then questioned 'about the ladder which he
said was a discarded ladder he had obtained from the
junk bin. He informed Reed that it was his recollection
that fiberglass ladders had only been approved by the
Company for 8 to 10 years and asked Reed whether they
were allowed to take ladders and fools from the junk bin
home which Reed said they were. Reed also, pursuant to
Enright's inquiry, said the ground rods and crossarmS
were also obtained from the junk pile.
Enright stated he then asked Reed whether there was
anything else on the farm they ought. to know about.
When Reed replied there might be some other articles
out there, but nothing of any consequence, he asked
Reed whether he minded if they went out and checked
his farm to see whether there was anything else there
that belonged to the Company. Reed, after hesitating and
appearing reluctant, finally nodded affirmatively after
Enright suggested that Clark and Prichard could accom-
pany Reed and he would not accompany them. While
Clark was preparing a statement for Reed to sign, En-
right stated Clark was sitting there shaking his head and
mentioning that only a few days .ago he was accused of
poorly representing two other employees" and now
here he was in trouble. According to Enright, when this
occurred, he told Reed if he felt -he needed some addi-
tional help, now would be the -time to get it. However,
Reed's response was they had gone that far and for theta
to proceed. Reed then read the search form and signed
it. Enright denied threatening to have Reed arrested if he
did not sign the search form.
Enright denied recalling Reed saying he wanted union
representation and stated he only made one request for
help.
Assistant Staff Manager Clark substantially corroborat-
'-ed Enright's version of the meeting 'and denied that En-
right threatened to press criminal charges against Reed
to obtain a search warrant. While he also denied Reed
asked for union representation, he stated that after En-
right informed Reed there were allegations made against
him in the letter which he wanted to discuss with him,
Reed remarked it seemed like a pretty serious matter to
him and maybe he needed some representation, where-
" Reed had earlier represented two employees who were dismissed
for misconduct
SOUTHWESTERN BELL- TELEPHONE CO • 667
upon Enright then asked Reed was he not the union
steward there. Under cross-examination Clark further
stated that later in the meeting Reed again said he might
need some representation, whereupon Enright told him
he thought that had been settled and Reed was the union
steward there, to which Reed agreed and consented to
go on.
According to Clark, Reed also informed them in ‘the
meeting he had gotten the used telephone poles from the
used • pole pile and denied the CB antenna pole was a
new pole.
Supervisor Prichard corroborated the testimony of
both Enright and Clark in part. However, contrary to
their testimony he testified that at the beginning of the
meeting, after Enright had informed Reed that allega-
tions had been made against him in an anonymous letter
and what the letter said and asked him if any of it was
true, Reed responded that it appeared to him that some
serious allegations. had been made and he might be in
some trouble and stated he thought maybe he ought to
have union representation in the ,meeting with him. He
then stated Enright asked Reed if he was not the steward
for the union complex and when Reed replied he was for
the construction work crew, Enright mentioned it was a
construction .matter and he would like for him to re-
spond to some questions he had pertaining to the letter.
According to Prichard„ when Enright then asked Reed if
he would respond to those questions, Reed said he
would. Prichard further stated when Enright sought
Reed's permission to - search his property Enright told
Reed if he felt he needed union representation then
would be the time to obtain it biri Reed remarked he had
gone that far and would not need union representation.
I credit the testimony of Reed concerning what tran7
spired at this meeting rather than that of District Manag--
er Enright, Assistant Staff: Manager Clark, and Supervi-
sor Prichard. Apart from my observations of the wit-
nesses, not only did Prichard contradict the testimony of
both Enright and Clark about whether Reed specifically
requested union representation, but his testimony in this
respect supports Reed's version that he did so." More-
over, even the versions of both , Enright and Clark that
Reed had informed them he wanted some help. or needed
some representation, to which Enright responded by
questioning Reed about his being the union steward,
shows they -would have been aware that he was seeking
union representation.
Following this meeting - Assistant Staff Manager Clark
and Supervisor Prichard, accompanied by Reed, left the
office and first searched Reed's company truck where,
according to Clark, they found' three screwdrivers
marked company property. Reed described them as
being old, rusty, and bent.,
14 The Respondent's counsel ;n a letter to a Board agent dated March
31, in which it provided a response to the charge in this case,--descnbed
this interview and stated in pertinent part as follows .
After the meeting had been in progress for some time, Mr Reed
made a comment to the effect that the matter sounded pretty senous
and that maybe he needed some union representation
The letter further reflects that, after additional questions and answers,
Reed also stated, "Maybe I better get some union representation"
After searching Reed's cothpany truck they went to
the farm where they searched Reed's farm including his
home, outbuildings, and his personal vehicles.
Clark described their search of the farm revealed the
following: A voltage tester that Reed claimed' was obso-
lete and had been discarded in the trash which Prichard
confirmed; a set of hooks used by linemen to climb poles
with the leather deteriorated which Reed said had been
discarded and Prichard verified; 20 to -30 U-guards with
the company emblem which Reed said had been sal-
vaged and used by him to brace fence posts. which Clark
later observed; a pile of bolts which Clark commented
appeared to be good bolts but which Reed said he had
gotten from jobs which Prichard confirmed were not
used anymore; a vehicle ramp constructed of used tele-
phones which Reed said he had used the truck to drill
the holes for; a pile of long telephone poles about 10 feet
high which Reed, pursuant to Clark's inquiry, said he
had transported there with his boat trailer; and a pole
with the antenna which Reed said was used and Prichard
inspected and indicated it looked like the identifying re-
marks had been removed.
According to Reed, he explained to them before
searching the 'farm that he had a lot of company-discard-
ed material there which he had been carrying home for
14 years. He described the bolts and crossarms as being
ones which had been used and discarded. Reed stated
that, on earching his personal truck, they also found an
Outdated first aid kit Prichard had given him a long time
ago.
Following the,search of Reed's property, Clark report-
ed to Enright That ,,same day what they had found. En-
right testified Clark showed him the three company
screwdrivers which appeared to be good to him and the
first aid kit and reported the piles of bolts and U-guards
and the diScarded voltage tester. Although Reed stated
Clark explained to Enright that it was nothing but a
bunch of junk, Clark denied having made such statement.
Enright testified that after receiving the report, he reiter-
ated that under company policy the use of equipment for
one's own personal use was not allowed and questioned
Reed about how he had hauled the larger uncut poles
and whether he had used the company truck which Reed
denied, stating he hauled them on a boat trailer
Enright, who alone made the decision, testified he
then suspended Reed and informed him the reason was
the unauthorized use of company vehicles to perform
work on his farm, the digging of holes, the setting of
poles, and the trimming of trees. Reed acknowledged
that, following Clark's report, Enright, who also re-
marked that the .three screwdrivers which had since
gone bad but were good when Reed stole them, suspend-
ed him indefinitely
Enright, under cross-examination, testified he suspend-
ed Reed for the unauthorized use of company vehicles
and the evidence he had at the time consisted of Reed's
admissions during the intervievi, about using the trucks
and the anonymous letter. However, he also acknowl-
edged he would not have suspended Reed solely on the
basis of allegations contained in the anonymous letter.
On redirect-examination Enright, on being asked what he
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
considered in suspending- Reed, stated it was Reed's ad-
missions to .using a post hole digging truck one time and
also his belief that the truck had been used on numerous
times which was based on what was in existence on
Reed's farm, including the fencing he had observed that
would have been laborious work to' hand dig, and the
statements contained in the letter about numerous occa-
sions a truck was used.
Reed's suspension on January 18 was without pay and
lasted 2 weeks. According to Enright he had initially de-
cided to suspend Reed for a week; . however, after being
informed about January 19 or 20. by Donald Cook, who
is now the manager of outside construction in Sikeston,
Missouri, that Cook had previously suspended Reed for
using a ,company vehicle on company time to go to his
farm, he decided on a 2-week suspension-period.
Cook, who previously held the position of supervisor
of construction and cable splicing and who supervised
Reed, testified. that in early 197 he had disciplined Reed
and docked his pay for 2-1/2 hours because .he and em-
ployee Tim Plank had used a company truck and trailer
to haul some poles To Reed's house during working
hours. He also-denied ever giving Reed permission to use
company equipment and property to perform work on
his farm. Reed, however, denied such an incident oc-
curred involving him and Plank
After the 2 weeks' suspension was up, Reed returned
to work. His return to work was also conditioned on his
returning' all of . the paraphernalia he had carted off
which he 'did return including bolts, poles not in the
ground, ground rods, U-guards, crossarms, and the
ladder According to Enright, the ladder was then de-
stroyed •in accordance with established company prac-
tice.
Reed filed a grievance over his suspension, which was
later Withdrawn. Warren Stecker, who is the union presi-
dent, and Bill Konecnik, who is the union chief steward,
both testified during the grievance meetings held on'
Ree'd's- suspension, which were held 'after he returned to
work. Respondent's representatives, Division' Manager
Dave Nylan and Ken Mayer, informed them Reed was
suspended for misuse or unauthorized use of company
vehicles which were the two incidents Reed had admit-
ted and they denied that Reed's possession of other com-
pany property was part of the suspension. Reed also tes-
tified during the first grievance meeting Nylan stated he
had been suspended for unauthorized use of company ve-
hicles which involved the two incidents of Using compa-
ny trucks to dig' holes and trim trees which he had previ-
ously admitted,' 5
,C. Analysts and Conclusions
The General Counsel asserts the Respondent Violated
Section 8(a)(1). of the Act by discriminatorily denying
Reed's request for union representation during an inter-
view in which lie had reasonable cause to believe might
result in disciplinary action, and by suspending him as a
,
15 Neither Nyian nor Mayer testified and I credit the undisputed , testi-
mony of Stecker, Konecnik, and Reed concerning the reasons given to
them for Reed's suspension which were also consistent with the reasons
as testified to by Ennght
result of information received from him during the inter-
view after . he had requested union representation.' Con-
trary to these assertions, the Respondent denied having
violated the Act as alleged or that Reed • requested or
was denied union representation or was ,sUspended as a
result of information obtained from him during , the inter-
view.
'The Respondent further argues in its brief' that the
Board Should defer to the parties' grievance and arbitra-
tion procedures regarding Reed's suspension" and also
that the Regional Director abused his discretion'by refus-
ing to approve a settlement agreement entered intcilby
the Respondent and the Union. Both positions . lack merit
and are . hereby rejected. With respect to the deferral ar-
gument, the Board's Collyer" doctrine 'is not applicable
in cases involving violations of Section '8(a)(1) of the
Act Loomis • Courier Service, 235 NLRB 534, 536 (1978),
enf. denied on other grounds 595 -F.2d 491 -(9th Cir.
1979); and General American - Transportation Corp., 228
NLRB 808 (1977). Ins'ofar as the settlement agreement is
concerned the rights guaranteed under the Act are in the
public interest rather than private rights .and the 'Region-
al Directbr's refusal to approve a private settlement
agreement by two of the parties would not 'constitute an
abuse of 'his discretion. Schuylkill Metals Corp., 218
NLRB 317, fn. 1(1975).
Under Section 7- of the Act" an employee has the
right to have union representation at an investigatory
interview which the employee reiaonably believes Might
result in disciplinary action.-NLRB v. J.:Weingarten, 420
U.S. 251 (1975). The protection accorded employees
covers both "investigatory" and "disciplinary" inter-
viewi except for those interviews, not applicable here,
conducted for the exclusive purpose of notifying an em-
ployee of previously _determined disciplinary action.
Baton Rouge Water Works Co., 246 NLRB 995 (1979)
The test for determining whether an employee ieasdn-
ably believes the interview -might result in disciplinary
action is measured by objective standards under all the
circumstances of the case rather than an employee's sub-
jective motivations. NLRB v. J. Weingarten; cited -supra
at 257 fn 5. Further, to invoke this protection, the em-
ployee must request union representation
The disciplining of employees as a result of interviews
where they are unlawfully prevented froth securing the
assistance of their union representative is also unlawful.
See AnchorTank, Inc., 239 NLRB 4,30, 431 (1978), enfd.
in part' and denied in part, 618 F.2d 1153 (5th Cir. 1980).
Where an employer conducts an investigatory interview
in violation of an employee's Weingarten 'rights and that
employee is disciplined for conduct which 'was the sub-
ject of the unlawful interview, the appropriate remedy is
a make-whole remedy unless the employer can demon-
strate that its decision to discipline that employee was
is Reed's gnevance regarding' his • suspension had previously been
withdrawn
" Collyer Insulated Wire, 192 NLRB 837 (1971)
is Sec 7 of the Act guarantees to employees the nght to "engage in
concerted activities for the purpose of collective bargaining or other
mutual aid or protection"
SOUTHWESTERN BELL TELEPHONE CO 669
not based on information obtained at the unlawful inter-
view Kraft Foods Inc., 251 NLRB 598 (1980).
The findings supra establish that on January 18 Reed
was notified to attend a meeting held at the Respondent's
office by Respondent supervisory personnel District
Manager Enright, Assistant Staff Manager of Security
Clark, and his immediate supervisor, Supervisor Pri-
chard. Enright began this meeting by questioning Reed
'whether he had ever used the company trucks to trim his
trees at his house. When Reed responded by saying he
thought he was in trouble- and he needed union represen-
tation, Enright ignored his request by informing Reed
that Reed was the union steward and that should be
good enough and then continued to question Reed about
whether he had trimmed his trees with company trucks;
and used company trucks to dig holes on his property
and other matters which Reed had been accused of
doing in an anonymous letter regarding the misuse of
company property and equipment by Reed. Later during
the interview, when Reed repeated that he needed union
representation, Enright again ignored his request by. indi-
cating Reed was the union steward and continued with
his questioning of Reed. After having questioned Reed
about his use of company equipment and property during
which Reed, after his initial request for union representa-
tion had been denied, admitted having used a company
basket truck on one occasion 2-1/2 years ago to trim
trees on his property and using the company post hole
digging truck on another occasion 8 to 10 years ago to
place two posts in a vehicle ramp he built on his proper-
ty, Enright attempted to have Reed sign a consent form
to permit them to search Reed's vehicles and property.
Although at that point, when Reed again renewed his re-
quest for union representation, Enright said he would
give him a minute to get his union representative there,
Reed went ahead and signed the form because there was
no telephone in the room and he did not see how he
could get a representative there that fast.
That same day, following a search of Reed's vehicles
and property, he was suspended without pay and his sus-
pension lasted 2 weeks. This suspension, according to
Ennght's own testimony, as well as statements made by
the Respondent's representatives to Reed and the
Union's representatives during grievance meetings con-
cerning Reed's suspension was based on Reed's admis-
sions during the January 18 interview that he had used
the company's trucks on the two occasions related by
him to perform work on his property. These admissions
occurred during the interview after he had first request-
ed and been denied union representation
The evidence further shows that Reed, at the time he
requested union representation at the January 18 inter-
view, he had more than reasonable cause to believe the
interview might result in disciplinary action being taken
against him. This was because under company policy, of
which Reed had knowledge, the use of company proper-
ty for personal benefit or improper purposes could lead
to disciplinary action, dismissal, or prosecution. When
Enright began the conversation by questioning him at
the office, where disciplinary meetings had been held, in
the presence of two supervisors about whether he had
ever used company trucks to trim his trees at his house,
his supervisor, Prichard, who he said had given him per-
mission, gave him a shrug like he did not know anything
about it, which led Reed to , believe he was, in trouble and
he so expressed himself during the interview at the time
he made the request.
Based on this evidence, and for those reasons discussed
and applying the applicable law, I am persuaded and find
that the Respondent violated Section 8(a)(1) of the Act
by denying Reed's request for union representation at an
investigatory interview he reasonably believed might
result in disciplinary action against him and by suspend-
ing Reed for 2 weeks without pay which -resulted from
this unlawful interview. •
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE
UPON COMMERCE
The activities ,of the Respondent set forth in section
III, above, found to constitute unfair labor practices oc-
curring in connection with the operations of the Re-
spondent described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to, lead to
labor disputes, burdening and obstructing commeree and
the free flow thereof.
CONCLUSIONS OF LAW
1. Southwestern Bell .Telephone Company is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Communications Workers of America, AFL-CIO,
Local 6310 is a labor organization within the meaning of
Section 2(5) of the Act.
- 3. By requiring that Daniel Reed participate' in em-
ployer investigatory interviews without union representa-
tion, which had been requested by Reed and had been
refused by the Respondent, when Reed had reasonable
grounds to believe that the matters to be discussed might
result in their being the subject of disciplinary action and
actually imposing such disciplinary action on Reed by
suspending him on January 18, 1983, for 2 weeks, with-
out pay, Respondent has violated Section 8(a)(1) of the
Act.
4 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices within the meaning of Section
8(a)(1) of the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action to ef-
fectuate the policies of the Act.
Accordingly, having found that the Respondent after
denying Reed his Weingarten rights, suspended him for 2
weeks, without pay, based on information obtained from
him at the unlawful interview itself, I shall order that the
unlawful suspension be rescinded and all references to
the suspension be expunged from his records and that he
be so notified and that he be made whole for any loss of
pay he suffered as a result of this unlawful suspension,
with the payment of interest. Interest shall be computed
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the manner prescribed by Florida Steel Corp, 231
NLRB 651 (1977)."
On these findings of fact and conclusions 'of law and
on the entire record, I issue the following recommend-
ed20
ORDER
The Respondent, Southwestern Bell Telephone Com-
pany, Union, Missouri, its officers, agents, successors,
and assigns, shall
1. Cease and 'desist from
(a) Requiring its employees to participate in employer
interviews or meetings without union representation
where such representation has been requested and re-
fused by the Respondent, when the employees have rea-
sonable grounds to believe that the matters to be dis-
cussed may result in their being the 'subject of discipli-
nary action and actually suspend or impose such discipli
nary action on its employees.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act;
2. Take .the following affiimative action necessary to
effectuate the policies of the Act.
(a) Rescind the January 18, , 1983 2-week suspension,
without pay, of Daniel Reed and make him whole for
any loss of earnings he may have suffered as a result of
the suspension with the payment of interest in the
' 9 See generally Ins Plumbing Go, 138 NLRB 716 (1962)
20 If no exceptions are filed as provided by Sec 102 46 of the Board'i
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
manner set' forth in the section of this decision entitled
"The Remedy."
(b) Expunge from its files all references to the suspen-
sion of Daniel Reed on January 18, 1983, and notify him
in writing that this has been done and that evidence of
this unlawful suspension will not be used as the basis for
future peisonnel actions against him.
(c) Preserve and, on reqUest, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post'at its Union, Missouri facility copies of the at-
tached notice marked "Appendix." 21 Copies of the
notice, on forms provided by the Regional Director for
Region 14, after being signed by the Respondent's au-
thorized representative, shall, be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are .not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to ,comply.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges unfair labor practices not spe-
cifically found herein.
." 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"