Diamond Reo Trucks, Inc.

National Labor Relations Board - Board Decisions

Jul 30, 1974

212 N.L.R.B. 651 (N.L.R.B. 1974)

DIAMOND REO TRUCKS, INC.
Diamond Reo Trucks, Inc. and International Union,
United Automobile , Aerospace and Agricultural Im-
plement Workers of America (UAW). Case 7-
CA-10706
July 30, 1974
DECISION AND ORDER
By MEMBERS FANNING, KENNEDY, AND PENELLO
On April 18, 1974, Administrative Law Judge John
P. von Rohr issued the attached Decision in this pro-
ceeding. Thereafter, counsel for General Counsel
filed exceptions and a supporting brief, and counsel
for Respondent filed cross-exceptions and also filed a
brief in answer to the exceptions taken by counsel for
General Counsel and a request for oral argument.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions 2 of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
i We hereby deny the Respondent's request for oral argument. as the
record including the briefs, adequately presents the issues and the positions
of the parties -
2 Member Fanning notes that even if Perry's request for "some kind of
representation" was in fact a request for union representation, Respondent
terminated his interview when Perry refused to answer questions after asking
for his representative. This was also true in Miller's case although Miller did
specifically request that his union representative be present. In such circum-
stances, and noting that neither employee was later disciplined for leaving
the interview, Member Fanning agrees with the conclusions of the Adminis-
trative Law Judge dismissing the complaint. See Western Electric Company,
Inc.,' 205 NLRB 195 (1973).
Member Kennedy also agrees with the conclusions of the Administrative
Law Judge but for the reasons expressed in his dissents in Quality Manufac-
turing Company, 195 NLRB 197 (1972), enforcement denied-481 F.2d 1018
(C.A. 4, 1973), and Mobil Oil Corporation, 196 NLRB 1052 (1972), enforce-
ment denied 482 F.2d 842 (CA 7, 1973), in which he has found that an
employee has no statutory right to union representation when summoned to
an interview with the employer or his representatives.
Member Penello also agrees with the conclusions of the Administrative
Law Judge since he finds that Respondent was merely conducting investiga-
tive rather than disciplinary interviews. See Western Electric Company, Hawt-
horne Works, 198 NLRB No 82 (1972). - '
DECISION
STATEMENT OF THE CASE
651
JOHN P. VON ROHR, Administrative Law Judge: Upon a
charge filed on November 5, 1973, the General-Counsel of
the National Labor Relations Board, by the Regional Di-
rector for Region 7 (Detroit, Michigan), issued a complaint
on January 11, 1974, against Diamond Reo Trucks, Inc.,
herein called the Respondent or the Company, alleging that
it had engaged in certain unfair labor practices violative of
Section 8(a)(1) of the National Labor Relations Act, as
amended, herein called the Act.' The Respondent filed an
answer denying the allegations of unlawful conduct alleged
in the complaint.
-Pursuant to notice, a hearing was held before Administra-
tive Law Judge John P. von Rohr in Mason, Michigan, on
February 26, 1974. Briefs have been received from the Gen-
eral Counsel, and the Respondent on March 22, 1974, and
they have been carefully considered.
Upon the entire record in this case and from my observa-
tion of the witnesses, I hereby make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent is a Michigan corporation with its prin-
cipal office and place of business located in Lansing, Michi-
gan, where it is engaged in the manufacture, sale, and
distribution of truck and truck parts. During the calendar
year ending December 31, 1973, Respondent sold and
shipped products manufactured by it valued in excess of
$50,000 to points and places located outside the State of
Michigan. During the same period, it received goods and
materials valued in excess of $50,000 from points and places
located outside the State of Michigan.
The Respondent concedes, and I find, that it is engaged
in commerce within the meaning, of Section 2(6) and (7) of
the Act.
II THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (UAW), is a
labor organization within the meaning of Section 2(5) of the
Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
During the month of October 1973, Respondent engaged
the Pinkerton Detective Agency to conduct an investigation
concerning the theft of company property. The complaint
alleges that Respondent violated Section 8(a)(1) of the Act
by refusing employees' requests that a union representative
be `permitted to attend interviews of them by Pinkerton
detectives during this investigation.
212 NLRB No. 97
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Facts
In about May 1973, Respondent engaged Pinkerton In-
corporated, a detective agency, to conduct an investigation
of theft at its Lansing plant. Particularly involved in sub-
stantial stock shortages were radios and stereo systems
which are utilized by Respondent in its business. The first
phase of the Pinkerton investigation involved a period of
undercover surveillance among employees in the areas of
the plant that appeared most likely suspect. The second
phase involved personal interviews of employees by Pinker-
ton detectives. These took place between October 4 and 31,
1973, with a total of 18 employees being interviewed during
this period. The Pinkerton agents conducting these inter-
views were Robert Claus and Jerry', Lang. The interviews
were held in an office in the personnel department, the
employees usually having been instructed to go there by
their respective foreman.
Three of the 18 employees interviewed were called as
witnesses by the General Counsel. One of them, employee
Joe Bush, concededly did not request the presence of a
union representative during his interview. Accordingly, the
balance of his testimony is not relevant to the issue and need
not be detailed here. However, the testimony of the other
two witnesses was as follows.
Employee Douglas Perry, who was interviewed about Oc-
tober 18, testified that the investigators handed him their
identification cards and introduced themselves as "Pinker-
ton Agents." They informed him of the nature of the inter-
view and indicated that he had been implicated in theft of
company property by other individuals. Perry testified that
after some further discussion the following took place:
The conversation continued and seemed to get hotter
and hotter between the individual on the left and my-
self, to the point where I asked them if I wasn't entitled
to some kind of representation. He told me the only
representation that would do me any good was a law-
yer, and he took the phone off the hook and shoved it
in my face and said if you wanted one, you can have
one you need it ... I told him I didn't believe I needed
a lawyer, because I hadn't done anything wrong, and
if they had any legal right to hold me there, and they
said they were employed, hired by management and I
had to stay there . . . Well, the conversation between
us was getting worse and worse there was nothing being
accomplished and just more hostility between us, and
I asked them then if they were legally affiliated with the
police department and if they could force me to stay,
and they said no, and so I arose and told them I was
leaving, and they told me if I left they would report it
to the management of the factory, and didn't matter to
them, they could have the State Police pick me up later
I turned and left. [Emphasis supplied.]
Employer Roger Miller testified concerning his interview
with Claus and Lang which took place in about the middle
of October. The investigators introduced themselves as in-
dependent agents who were hired by the Company and
advised Miller that they were conducting an investigation.
Miller testified that he told the investigators that he was
aware of the investigation but that he "did not appreciate
the fact that his name had been mentioned in connection
with it." Miller said that at this point he was asked to sit
down, to which he said he responded, "I want my union
representative right now." Continuing, Miller testified that
one of the detectives replied, "We don't think you are enti-
tled to union representation unless you have a grievance."
Miller retorted that he "didn't get paid to think" and that
in the past he had obtained union representation when he
asked for it. Miller said that at this point one of the men told
him that he was in trouble. However, Miller testified that
this made him "kind of mad," whereupon the following
ensued:
I told them that I would give them five minutes to tell
me what it is they wanted me in there for, and the man
said then what, and I said I am walking out of here and
punching out and going home. . . He told me to go on,
if I didn't want to talk, to go on . . . Just told me to
leave, if I didn't want to talk to them. I dust walked out,
and punched out and went home. . . He said he would
see me in court.
It is undisputed that Respondent at no time took any
action against Miller because he walked out of the interview
in the manner reflected above.
B. Conclusions
As of this writing, and notwithstanding court decisions to
the contrary, the Board adheres to the proposition that the
rights guaranteed employees under Section 7 of the Act
includes the right of an employee to insist on union repre-
sentation at interviews which he is compelled by his employ-
er to attend, where the employee has reasonable grounds to
believe that the interview might result in action adversely
affecting his employment) Thus, in the Mobil Oil case, su-
pra, the Board stated, "such a dilution of the employees'
right to act collectively to protect his job interests is, in our
view, unwarranted interference with his right to insist on
concerted protection, rather than individual self-protection,
against possible adverse employer action."
Under the present posture of the Board not having ac-
quiesced with the court decisions, and Supreme Court not
having ruled on the matter, it is well settled that I am
obliged to follow Board rather than court precedent. How-
ever, under the facts of this case, I am persuaded that the
General Counsel has not established that Respondent vio-
lated Section 8(a)(1) of the Act, as alleged in the complaint.
My reasons for so holding may be briefly stated as follows:
Giving first consideration to the testimony of Douglas
Perry, it will be recalled that the testimony of this employee
was that during the interview he simply asked for "some
kind of representation." The cases previously cited make it
1 Quality Manufacturing Company, 195 NLRB 197 ( 1972), enforcement
denied 481 F 2d 1018 (C A 4, 1973), Mobil Oil Corporation, 196 NLRB 1052
(1972), enforcement denied 482 F 2d 842 (C A 7) J Weingarten, Inc, 202
NLRB 446, enforcement denied 485 F 2d 1135 (C A 5, 1973)
DIAMOND REO TRUCKS, INC.
clear that in order to invoke a statutory right the employee
must request the presence or assistance of his statutory or
bargaining representative, i.e., his union representative. It is
my view that Perry's request for "some kind of representa-
tion" was at best ambiguous and does not warrant the inter-
pretation that he necessarily was requesting the presence of
his statutory representative . Accordingly, in the absence of
such a request , I find that Respondent was not put in the
position of depriving this employee of any of his Section 7
rights.
Insofar as Roger Miller is concerned , I find his case to
parallel the situation in Western Electric Company, Inc., 205
NLRB 195, where the Board found no violation on the
ground that the employee was permitted to leave the inter-
view when. his request for union representation was denied.
Miller also asserted his desire to terminate the interview on
being told that he was not entitled to union representation,
whereupon as he testified , he was "just told to leave if he
didn't want to talk ..." Miller thereupon departed without
being threatened that Respondent would take any discipli-
nary action against him or that he would be deprived of any
of his employment rights. Indeed , it is undisputed that Re-
spondent in fact did not discipline Miller because of his
leaving the interview when his request for union representa-
tion was denied ? Accordingly, I find that Respondent did
not violate Section 8 (a)(1) of the Act by its conduct with
respect to the aforesaid Miller incident.
Finally, I have not overlooked a,stipulation between Re-
spondent and the General Counsel to the effect "that the
Union [in October 1973] demanded to be present at the
investigation and that the Company consistently declined
that they be present ." However , I fail to see where the fact
of Respondent 's denial of the Union 's request adds any
merit to the General Counsel's complaint , for the cases
previously cited indicate that the request for union represen-
tation must be invoked by the employee. Thus, not only was
the request in each of these cases invoked by the employee
involved, but in Quality Manufacturing Co., supra, the Board
further stated as follows:
2 In this request it is noteworthy that employee Douglas Perry also was
never disciplined, even though he also left the interview at his own behest
before it was completed
653
In Texaco, supra, when the employee asked to be repre-
sented in the interview, the employer advised that it
would not insist on the interview unless the employee
was willing to enter the interview unaccompanied by
his representative . This seems to us to be the only
course consistent with all of the provisions of our Act.
It permits the employer to reject a collective course in
situations such as investigative interviews where a col-
lective course is not required but protects the
employee's right to protection by his chosen agents.
Participation in the interview is then voluntary, and, if
the employee has reasonable ground to fear that the inter-
view will adversely affect his continued employment, or
even his working conditions , he may choose to forego it
unless he is afforded the safeguard of his
representative 's presence . He would then also forego
whatever benefit might come from the interview. [Em-
phasis supplied.]
In short, and upon the basis of the cases cited , I do not
believe that the Board intended to utilize a union 's blanket
request that it be permitted to be present during employee
interviews as a basis for finding an unlawful infringement
of the employee's statutory rights in cases where the Union's
request is denied .3
CONCLUSIONS OF LAW
1. The Company is engaged in commerce within the
meaning of the Act.
2. The Union is a labor organization within the meaning
of the Act.
3. The Respondent has not committed unfair labor prac-
tices within the meaning of Section 8(a)(1) and (3) of the
Act.
RECOMMENDED ORDER
By reason of all the foregoing , it is recommended that the
complaint be dismissed in its entirety.
3 The instant case does not involve any issue of an 8(a)(5) violation.