E.I. du Pont & Co.

National Labor Relations Board - Board Decisions

Jul 29, 1994

314 N.L.R.B. 674 (N.L.R.B. 1994)

674
314 NLRB No. 109
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
E.I. Dupont de Nemours & Company and Buffalo
Yerkes Union. Case 3–CA–17273
July 29, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS DEVANEY
AND COHEN
On May 26, 1993, Administrative Law Judge James
L. Rose issued the attached decision finding that the
Respondent unlawfully denied an employee his right to
request the presence of his union representative during
an interview which he reasonably believed may lead to
discipline. The Respondent filed exceptions only to the
wording of the Order and notice. The Respondent ar-
gues inter alia that the Order and notice erroneously
suggest that the request for a union representative can
be made by the Union rather than the employee.
The National Labor Relations Board has delegated
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. We find
merit in the Respondent’s exceptions and shall modify
the recommended Order and notice accordingly. In all
other respects, we affirm the judge’s rulings, findings,
and conclusions.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, E.I.
Dupont de Nemours & Co., Buffalo, New York, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
‘‘(a) Denying to an employee, who is the subject of
an investigation which the employee reasonably be-
lieves might lead to discipline, his right to be rep-
resented by the Buffalo Yerkes Union on the request
of the employee.’’
2. Substitute the attached notice for that of the ad-
ministrative 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 or-
dered us to post and abide by this notice.
WE WILL NOT deny to our employees, who may be
the subjects of an investigation which they reasonably
believe might result in discipline, the right to be rep-
resented by the Buffalo Yerkes Union on the request
of the employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
E.I. DUPONT DE NEMOURS & COMPANY
Doren G. Goldstone and Rafael Aybar, Esqs., for the General
Counsel.
Charles E. Mitchell, Esq., of Wilmington, Delaware, for the
Respondent.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter
was tried before me on March 24, 1993, at Buffalo, New
York, on the General Counsel’s complaint which alleged that
the Respondent refused to allow an employee to be rep-
resented by his labor organization during an investigation
which might have led to discipline. Therefore, the Respond-
ent violated Section 8(a)(1) of the Act.
The Respondent generally denied that it committed any
unfair labor practice and specifically contends that the em-
ployee in question did not request representation.
On the record as a whole, including briefs and arguments
of counsel, I hereby issue the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Delaware corporation with facilities
throughout the United States, including one at Tonawanda,
New York, where it is engaged in the manufacture of tedlar
film and corian products. The Respondent annually receives
directly from points outside the State of New York goods
valued in excess of $50,000. The Respondent admits, and I
find, that it is an employer engaged in interstate commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party, Buffalo Yerkes Union (the Union), is
admitted to be, and I find is, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Facts
For some years the Union has represented the Respond-
ent’s employees at the ‘‘Yerkes’’ plant (named for a former
employee). Although the collective-bargaining agreement is
not in evidence, there is no dispute that pursuant to its terms,
employees who are union representatives can be released
from work in order to conduct union business, including the
representation of employees during meetings leading to dis-
cipline.
675E. I. DU PONT & CO.
1 All dates are in 1992, unless otherwise indicated.
2 The errors in the transcript have been noted and corrected.
Gregory Luly is a control mechanic who has worked for
the Respondent 18 years. On June 17, 1992,1 while attempt-
ing to hide the tool cart of a fellow employee (an admitted
act of horseplay), Luly seriously injured a finger. He was
taken to the hospital to have his finger repaired.
The next morning he reported for work at 7:30 a.m. and
was taken by his immediate supervisor, Mike Bognar, to the
office of Paul Brown, the area superintendent for mainte-
nance in Corian. Luly was questioned about the accident and
then Brown, Bognar, and Luly went to the sludge room
where it had occurred. They returned to Brown’s office about
9 a.m.
In essence, Luly had maintained that the accident hap-
pened while he was getting ready to do work in the sludge
room. Brown did not really believe Luly and was suspicious
that Luly had been involved in some kind of horseplay. In
any event, Brown was not satisfied that the injury happened
as Luly had described.
Luly testified that when he learned that he was to report
to Brown’s office, he told fellow employee Dan Pierce ‘‘to
get a hold of the union for me.’’ And he testified that during
his initial meeting with Brown and Bognar he requested
union representation and Brown had directed Bognar to con-
tact the supervisors of the union representatives. That he
made such a request, or that a call was made to secure the
presence of union representatives was denied by Brown and
Bognar.
Luly testified that when he and Brown returned from the
sludge room, in Brown’s office were union representatives
Albert Moore (the president) and James Gant2 (maintenance
representative of the tedlar control group), along with
Bogner. Luly, Moore, and Gant testified that the five met for
about 45 minutes, then Brown announced that he wanted to
go back to the sludge room and have Luly reenact what hap-
pened. They testified that Moore and Gant asked to be
present and Brown told them he would find out if they
could. Luly, Moore, and Gant then went to the union office
and a short time later Moore received a phone call from
Brown, the essence of which was that Moore and Gant
would not be allowed to go on the second trip to the sludge
room. And in the hallway Brown told them that their pres-
ence was not necessary as he was merely investigating how
the accident happened.
Brown and Bogner testified that Luly never requested
union representation. Further, Moore and Gant appeared out-
side Brown’s office about 9 a.m. but were not involved in
the meeting, though Brown spoke with them briefly, and ad-
mits that at some point they asked to represent Luly.
The principal conflict between witnesses for the General
Counsel and the Respondent is whether Luly requested that
the union represent him and whether Moore and Gant partici-
pated in the meeting at Brown’s office before the second trip
to the sludge room.
Moore and Gant are employees. In order to do union busi-
ness on company time, they must be released by their respec-
tive supervisor. Moore testified that he was informed of the
meeting to be held at Brown’s office at 10 a.m. by his super-
visor, Uland Gladden. Similarly, Gant testified that his super-
visor, Bob Woolcott, told him to report to Brown’s office for
the meeting.
After the second trip to the sludge room, Brown deter-
mined that Luly had been injured as a result of horseplay,
told him he had better seek representation by the Union, and
set a disciplinary meeting for the next day. In fact Luly ulti-
mately admitted having been involved in horseplay and was
given a 1-year disciplinary probation.
B. Analysis and Concluding Findings
The parties agree that a company must allow an employee
to be represented by his union during interview which he
reasonably believes could lead to disciplinary action. NLRB
v. J. Weingarten, 420 U.S. 251 (1975). However, as noted
by counsel for the Respondent, this right is triggered only by
the employee’s request, and cannot interfere with legitimate
employer perogatives. Further, under Weingarten, an em-
ployee who is merely being interviewed without some rea-
sonable expectation that the investigation could lead to his
discipline has no right of representation.
The request need not be in any particular form, so long
as the company is put on notice by the employee that he
wants representation. Southwestern Bell Telephone Co., 227
NLRB 1223 (1977). And once the request is made, it need
not be repeated. Consolidated Freightways Corp. of Dela-
ware, 264 NLRB 541 (1982).
Thus for the Weingarten right to attach, the employee
being interviewed must reasonably expect that a result of the
investigation will be his discipline and he must ask for rep-
resentation. Then the company representative can determine
whether to grant the request, or to forego interviewing the
employee, or to deny the request and give the employee the
opportunity to submit to the interview in any event.
The General Counsel alleges that just prior to the second
trip to the sludge room, Luly requested the Union to rep-
resent him there and Brown declined. The Respondent con-
tends that Luly never requested representation—that the only
request was made by Moore, which was insufficient under
Weingarten.
Though Brown claims that he was simply trying to get the
facts until after the second sludge room meeting, it is clear
from his testimony that at least by the end of the first trip
to the sludge room he did not believe Luly. By this time, I
conclude, Brown was inclined to believe that the accident
was the result of some kind of horseplay. Therefore, Luly
had become more than simply a witness to be interviewed
but had become the target of potential discipline. And Luly
reasonably knew of the potential for discipline since he had
not been truthful with Brown and in fact had engaged in
horseplay. If not before, by the time they returned to
Brown’s office the first time Luly’s Weingarten right to be
represented had attached.
Brown and Bognar testified that they then met with Luly
another 45 minutes, during which Moore and Gant showed
up outside the office. Luly, Moore, and Gant testified that
Moore and Gant had arrived by the time Luly and Brown re-
turned from the sludge room and they participated in the
meeting. They were subsequently told by Brown that they
could not represent Luly during the second trip to the sludge
room.
The testimonial conflict between witnesses for the General
Counsel and those for the Respondent is so stark than it can-
676 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Luly testified that early on June 18 he asked a fellow employee
to contact the Union, a fact which I discount because there is no
indication that a rank-and-file employee would be able to secure the
release from work of union representatives.
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
5 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
not be attributed to mistake or faulty memory. One side or
the other did not tell the truth about whether Moore and Gant
participated in the meeting as representatives of Luly. Fur-
ther, this is critical in resolving whether Luly in fact re-
quested representation. Standing alone, Luly’s testimony is
not particularly credible; but if Moore and Gant were at the
second meeting in Brown’s office, it would follow that their
presence had been called for by Brown and this would con-
firm that Luly made the request.
The objective and uncontested evidence supports the testi-
mony of Moore and Gant. Moore and Gant were employees
who had to be released by their respective supervisors in
order to do union business. In order to be released, someone
has to notify the supervisor who then notifies the union rep-
resentative. Someone contacted Uland Gladden (for Moore)
and Bob Woolcott (for Gant) on the morning of June 18.
Moore and Gant could not, and I find did not, act sua sponte.
That they came to Brown’s office lends credence to Luly’s
testimony that during the first meeting he requested union
representation and Brown instructed Bognar to call the super-
visors of Moore and Gant.3
Gladden and Woolcott are supervisors and therefore agents
of the Respondent who could have confirmed or denied that
they were contacted by Bognar and as a result released
Moore and Gant. But they were not called as witnesses by
the Respondent which raises the inference that their testi-
mony would have been adverse to the Respondent’s inter-
est—namely, that they in fact were contacted by Bognar.
International Automated Machines, 285 NLRB 1122 (1987).
Finally, the testimony of Moore and Gant is supported by
a diary entry of June 18 made by Moore noting the meeting
in Brown’s office. Thus I credit Luly, Moore, and Gant, and
discredit Brown and Bognar on the critical point of whether
Moore and Gant participated in the meeting before the sec-
ond trip to the sludge room. I find they were at the meeting
for the purpose of representing Luly and they did so.
However, when Brown determined to return to the sludge
room and have Luly demonstrate with a cart just how the in-
jury occurred, the continued representation by Moore and
Gant was disallowed.
Regardless of how expressed, clearly Luly sought union
representation and that representation was forthcoming, with
the knowledge and assent of the Respondent. He sought and
had been granted representation by the Union, thus I need
not resolve the conflict between him and Brown concerning
whether he asked for representation at the outset.
It necessarily follows from the policy of Weingarten that
once established, union representation of an employee cannot
be summarily discontinued. Thus, when Brown cut off the
representation before the second trip to the sludge room, he
violated Luly’s Weingarten right. Therefore, I conclude that
by its act, the Respondent violated Section 8(a)(1) as alleged.
REMEDY
Having concluded that the Respondent engaged in the un-
fair labor practice alleged, I shall recommend that it cease
and desist therefrom and take certain appropriate affirmative
action.
Where it has been established that a company violated an
employee’s Weingarten right, then the burden is on the com-
pany to show that the ultimate discipline was not based on
information obtained during the unlawful interview. Though
this issue was not addressed by the parties, from the entire
record I conclude that Brown would have proceeded to dis-
cipline without regard to any information obtained at the sec-
ond sludge room visit. Therefore, the remedy will not include
expunging the discipline given Luly.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, E. I. DuPont de Nemours & Co., Buf-
falo, New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Denying to an employee who is the target of an inves-
tigation which might lead to discipline his right to be rep-
resented on request by Buffalo Yerkes Union.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its Tonawanda, New York facility, copies of the
attached notice marked ‘‘Appendix.’’5 Copies of the notice,
on forms provided by the Regional Director for Region 3,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt 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, de-
faced, 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.