General Motors Corp.

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 850 (N.L.R.B. 1980)

85{} DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Motors Corporation and Jerry G. Allen.
Case 7-CA-15990
August 27, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS ANI) TRUESI)AI.E
On February 1, 1980, Administrative Law Judge
Thomas R. Wilks issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
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 brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, General
Motors Corporation, Detroit, Michigan, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except
that the attached notice is substituted for that of
the Administrative Law Judge.
'Respondenl has excepted to certain credibility findinlgs made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an adminisrative law judge's resolutions with respect to credi-
hility unless the clear prepondterance of all orf he relevant evidence con-
vinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950). enfd 188 .2d 362 (d Cir 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 We agree with the Administrative l.aw Judge that a make-whole
remedy is appropriate in this case, inasmuch as Respondent has not sus-
tained its burden of establishing that it would have discharged Allen even
in the absence of the unlawful ilieriessw Illioir Bell Telephonet Company.
251 NLRH 932 (I1980): lxaco, Inc., 251 NIRKH 633 (1980) Ideed. the
record here indicates that in fact the substance of the unlaswful interview
was a significant factor in Respondent's decision to discharge Allen.
Thus. although the conduct fr which Allen ssas allegedly discharged
occurred ,,1 January 5 Allen was not discharged until January 17. the
day fllo Wing the unlawful interview And, although Allen was inter-
viewed on three occasions prior to the unlawful interview Respondent
did not see fit to discharge him until the unlawful interview during hich
it obtained Allen's admission at least partially corroborating the accusa-
lion hich formed the basis of his discharge Member Truesdale finds
this case factually distinguishable from lixaeo. upra. a case in which he
dissented from the majority ' application of the remedial test sit frh in
Illinois Bell liTelephone vupra
Member Jenkins concurs in the remedy, for the reason expressed in his
dissent in Kraft Foodr. Inc.. 251 NLRB 598 (1980).
251 NLRB No. 121
APPENDIX
NOIICE To EMPI OYI-SS
POSrED BY ORDER OF- I -:
NATIONAl. LABOR RH.ATIONS BOARI)
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WI.l NOTr require any employee to take
part in an interview, meeting, or conference
where the employee has reasonable grounds to
believe that the matters to be discussed may
result in that employee's being the subject of
disciplinary action, and where we have refused
that employee's request to be represented at
such interview, meeting, or conference by a
labor organization.
WE WLl.1. NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights under the National
Labor Relations Act.
It has been found that we discharged Jerry
Allen in consequence of our conclusions based
on an interview with Jerry Allen during which
he was unlawfully denied union representation.
WE WIL.. offer Jerry Allen immediate and
full reinstatement to his former job or, if his
job no longer exists, to a substantially equiva-
lent position, without loss of seniority or other
rights or privileges previously enjoyed, and we
will make him whole for any loss of earnings
he may have suffered as a result of that dis-
charge, with interest.
WE WILL also expunge from our personnel
records any reference to the discharge of Jerry
Allen on January 17, 1979.
GENERAL. MOTORS CORPORATION
DECISION
ST ATII MFNT OF I H-E CASE
THOMAS R. WIIKS, Administrative Law Judge: This
case was heard before me on August 9, 1979, pursuant to
a complaint and notice of hearing issued by the Regional
Director for Region 7 of the National Labor Relations
Board. The complaint alleges violations of Section
8(a)(1) of the National Labor Relations Act, as amended.
An answer was filed by the Respondent, which denied
the commission of any unfair labor practice. The parties
were provided full opportunity to make opening state-
ments, to examine and cross-examine the witnesses, to in-
troduce relevant evidence, to make closing statements,
GENIRAI MI()I()RS CORP()RAII()ON 51
and to file briefs with me. he Respondent timnel filed a
post-hearing brief.
Upon the basis of the entire record, my observations
of the witnesses, and the briefs filed by the Respondent, I
make the following:
FINI)IN(/S O F( I
I. I Ht I BUSINISS 01 I1 1 RISI'ONI)tN I
At all material times, the Respondent. a corporation
duly organized under and existing by virtue of the laNvs
of the State of Delaware, has maintained its principal
office and place of business at 3044 West Grand Boule-
vard in Detroit. Michigan, and maintains plants in the
States of Michigan. Ohio. and other States throughout
the United States. The Respondent is, and has been at all
times material herein, engaged in the manufacture, sale,
and distribution of automobiles. The Respondent's Truck
and Coach Plant located in Pontiac, Michigan, is the
only facility involved in this proceeding. During the year
ending December 31, 1978, which period is representa-
tive of its operations during all times material hereto, the
Respondent. in the course and conduct of its business op-
eratioins, had gross revenues in excess of SI million arid
purchased and caused to be transported and delivered to
its Pontiac plant steel. alutinllm. iron, and other goods
and materials valued in excess of $500.0(X) of which
goods and materials alued in excess of $50,(XX) were
transported and dli ered o its plant in Pontiac, Michi-
gan, directly from points located outside the State of
Michigan.
The Respondent is nos and has been at all material
times herein an employer engaged in commerce ithin
the meaning of Section 2(6) and (7) of the Act.
II. THil I BOR ORG;ANIZATIIN IN'OI VI-.)
Local No. 594, International Union, United Auto-
mobile. Aerospace and Agricultural Implement Workers,
UAW, herein called the Union, is, and has been at all
times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
III. I HI. UNIAIR AtBOR PRACrICES
A. The Issues
The General Counsel contends that the Respondent
violated Section 8(a)(1) of the Act on two occasions, on
January 12 and 16. 1979, by persuading the Charging
Party "into sacrificing his right to union representation
over a matter which led to his discharge on January 17,
1979, by improperly leading him to believe that there
was no potential for discipline over the issues being dis-
cussed." I
B. Pertinent Facts
On January 5, the Respondent's plant security officer,
Kevin Benner. was present at the parking lot of a bowvl-
ing alley. On that date he made observations as to cer-
tain conduct by employees of the Re-pondent. Thereaf-
ter he filed a report w.hich came to he attention of the
All dates hrein re I974
Respondent's manager of labor relations, Robert Goebel.
Benner had reported to Gioebel that he had obser ed the
conduct of certain employees which led him to belie e
that property stolen from the Respondent's plant m as
being sold at or near the bowling alley He also reported
that the local police department as notified and that
they had arrived on the scene and made arrests of certain
individuals. Concurrently he reported to Goebel that he
had also observed the presence of three union commit-
teemen at the bowling alley on that date. There is no in-
dication that his report in any way implicated the com-
mittieemen vith the alleged theft and sale of stolen prop-
erty. IHo, e er his report raised some questions as to the
accuracy of the timecards of at least to of those com-
mitteemen for the date of January 5; i.e.. Jerry Allen and
Willard Sergent. enner had reported that he had ob-
served Allen's presence at the bo linhg alle on January
5 from 9:07 a.m. until he departed at 1)0:55 an He also
had reported that Sergent and another committeemanil
vere present at the bow ling alley on the afternoon of the
same day. On January 5, Allen had reported for v ork,
and punched in. Thereafter from outside the plant he
telephoned and requested that his foreman punch out his
timecard at noon. His timecard for that date also re-
vealed a second punchout time at 7:22 p.m. ithout any
indication that he had punched in again during the after-
noon.
Allen testified that, on January II, as he ,`as leaving
the plant he encountered Benner who asked Allen to
identify himself. In that ensuing conversation. Benner
told Allen that he had "orders to keep eyes on people
that were leaving the plant." He further told Allen that
he had observed Allen leave the plant on Monday. Janu-
ary 8 (according to Allen's testimony), and that he did
not observe Allen return. Allen told him he was right
and that he did not return.
On January 12. shortly after lunchtime in the plant at
or about 10:30 am., Allen as summoned by Foreman
Bohinke to a meeting in the office of General Foreman
Hoyt Speed. Present in addition to Bohinke and Speed
were Benner and Goebel. As Allen entered the room, he
observed that all the participants had already arrived
According to Allen, Goebel stated that there had been a
theft of radios and that some "people" were apprehended
at the bowling alley. According to Allen at that point he
stated, "Hey if I am in some kind of trouble. . . give me
some representation." At that point Goebel stated, "No,
you are not involved in a theft. I just want to ask you
some questions about your timecard there, and stuff."
Goebel further stated, "You are not involved in any of
that." Goebel, according to Allen, then stated that he
wanted to ask Allen about his timecard and that he de-
sired "to clean up a little matter here." Thereupon he
proceeded to inquire of Allen as to some handwritten
scribbling on the timecard, as to why the timecard as
punched out at 7:30 p.m., what time Allen had actually
left the plant on January 5, and what did he do after 12
p.m. on that particular date. According to Allen, he re-
sponded that the scribbling was hb the timekeeper and
related to a dispute as to holiday pay for Monday (appar-
X52 I).tCISI()NS OF NATIONAL ILAI)OR RELA'I()NS H()OARD
cntl) January I), and that he had left the plant at noon
on January 5 and proceeded to go home.
According to Allen, Goebel asked him whether he had
observed committeeman Sergent at the bowling alley oil
the afternoon of that day, and he further asked Allen
what his route was when he proceeded o go home.
Allen's testimony in this regard was cryptic and he did
not indicate what his response was to that last series of
questions. On cross-examination Allen testified that he
was not questioned as to his presence prior to noon on
January 5. Hie conceded that Goebel did, in fact, refer to
the arrest of certain employees at the bowling alley.
Allen testified that on January 15 he was summoned
again to the office of General Foreman Speed, sometime
during the morning of that date, when he was told by
Speed that Goebel had instructed Speed to ask Allen
more questions. Allen admittedly responded that he was
agreeable and, as they were alone, according to Allen's
testimony, Speed interrogated him again about the time-
card and what his activities were on the afternoon of
January 5 and whether Allen desired to change any part
of his "story." Allen's testimony in this regard was cryp-
tic and conclusionary. He testified that Speed merely
asked the same questions as Goebel had asked earlier on
January 12, and that he. Allen, responded in the same
manner. He concedes that at no point in that conversa-
tion did he ask for union representation. On cross-exami-
nation, when prodded. Allen became a bit more expan-
sive as to the January 15 conversation. He testified that
he asked Speed "what's going on," and that Speed re-
sponded, "I don't know. They seem to be concerned
over here about your timecard." Allen conceded that he
did not ask Speed just what it was that he was suspected
of doing improperly. He testified that in explanation that
he had not "seen any problems after 12:00-." He insist-
ed that the issues discussed by Speed were the same
issues discussed on January 12. He recalled no further
conversations with Speed on January 15.
On January 16, in the late morning, Allen was in the
plant on union business at the assembly line in the axle
department. He was answering several "calls" from em-
ployees who wanted to discuss with him several prob-
lems. When he was approaching an employee next to the
line after just finishing talking to another employee,
Allen observed Goebel approach him from the other side
of the line, come up to within 5 feet of him, and com-
mence to speak to him. According to Allen, Goebel
stated: "I want to talk to you for a couple of minutes and
clear up a few items . . ." at which point Allen stated:
"What kind of bull shit is this . . . Give me some repre-
sentation .... Jesus Christ what's this all about. You
accuse me of theft, playing games with my card
what's going on." According to Allen, Goebel continued
to talk and told Allen not to get excited and repeated
that he wanted to clear up a few questions. At that point
it is Allen's testimony that he stated, "Give me a damn
lawyer."2 However, Goebel insisted on speaking to
Allen stating that he wanted to "clear it up once and for
all," and told Allen "just answer a couple of questions
for me." He stated that this would clear up the matter
I the plan parllance a "laws er" nmean. nilnl represenltilr l
once and tfor all and that Allen did not need a repre-
sentative. According to Allen, Goebel asked him what
his activities were from shortly after 9 a.m. until about
11 a.m., whereupon Alien at first expressed difficulty in
recalling what had happened after a lapse of time. Al
that point (ioebel told Allen that he had been observed
hby the plant security officer at the bowling alley during
that period of time. Allen paused for a moment, thought,
and theni responded, "Yeah you're right. What about it."
Goebel asked Allen whether he thought there was any-
thing wrong with that, whereupon Allen stated that he
did not think so inasmuch as he attended a meeting with
an individual by the name of Donald Douglas on a union
matter. Allen protested that it was not unusual for a
plant committeeman to leave the plant premises on union
business. At that point according to Allen, Goebel men-
tioned that there was a union business matter concerning
him at the office, and Allen departed and tended to
union business.
Thereafter on January 17 Allen was summoned by
Foreman ohinke and sent to General Foreman Speed's
office at which point Speed informed him that he was
being discharged for engaging in fraudulent conduct and
presented him with a discharge notice form.
Allen's written discharge notice stated as follows:
On January 5. 1979, you were observed by Plant
Security Sergeant K. Benner entering the Orchard
Lanes located at 645 South Opdyke road. at ap-
proximately 9:07 a.m. You did not leave that estab-
lishment until approximately 10:55 a.m. when you
were observed leaving by Plant Security Sergeant
K. Benner. Your timecard however reflects that on
1/5/79 you were paid for several hours when in
fact you did not work that amount of time. The
above misconduct constitutes an act of fraud on
your part for which you are being issued a Final
Release.
Allen requested as a union representative an individual
other than the normal "zone man" to whom Allen was
subordinate. Speed immediately engaged in an effort to
secure the individual and to summon him for Allen.
Allen's account, as set forth above, with respect to the
January 12, 15, and 16 encounters is contradicted by the
testimony of Goebel, Speed, and Benner.
With respect to the January 12 meeting in Speed's
office it is the testimony of Speed, Goebel, and Benner
that Allen at no point in that conversation requested
union representation, and that at no point did Goebel de-
cline such request nor did he indicate to Allen that no
discipline would ensue from that conversation nor indi-
cate that a union representative was not necessary. It is
Goebel's testimony as corroborated by Benner and Speed
that Goebel opened the conversation by advising Allen
that the Respondent was engaged in an investigation of
his activities on January 5 with respect to his timecard of
that date, and that Allen responded that he would coop-
erate. Goebel advised Allen of Benner's report wherein
Benner observed Allen at the bowling alley on the morn-
ing of January 5 at a time when Allen was still punched
in on his timecard. It was also pointed out that the time-
CGINFRAI M()TORS CO()RP()RA II)N S
card reflected a double punchout time without an) intcr-
vening punch in, i.e., punchout time at noon and a pun-
chout time at approximately 7:30 p.m. According to
Goebel. Allen responded that he had arranged a pun-
chout through the foreman, and that he had not returned
to the plant and that possibly someone else punched his
timecard out at 7:30 p.m. for the purpose of getting him
in trouble. Allen did acknowledge signing the timecard
afterwards.
According to the testimony of Goebel, Benner, and
Speed, Allen denied that he was present at the bowling
alley during the morning hours and asserted that he had
left the plant at II a.m. and had proceeded to the "union
work center" outside the plant, which is used by union
committeemen for union business and that he had left to
go there for the purpose of engaging in union business.
Allen had explained that when he reached the union
work center he had been informed that his mother was
seriously ill and that he was requested to return home
immediately. He explained that he was at the bowling
alley at 2 p.m. because his truck had experienced a trans-
mission difficulty and he went to the bowling alley to
wait for another committeeman to drive there from the
plant, and to pick him up and drive him home. All three
individuals testified that Allen flatly denied that he was
at the bowling alley at 9:07 a.m. on the morning of Janu-
ary 5. Goebel pointed out to Allen the report of Benner.,
wherein Benner had observed Allen's pickup truck and
had recorded his license number and described Allen
physically. Allen was asked to explain if he was aware of
any motivation that Benner might have had to concoct
this report. Allen stated that he and Benner had been
previously unacquainted, and therefore no motivation ap-
parently existed. According to Goebel, Allen simply
stated that he could not explain the report but that, in
fact, he had not been at the bowling alley in the morn-
ing.
Goebel also explained to Allen that the other elements
of Benner's report have proven to be correct; and that
indeed other committeemen were present at the bowling
alley on that date; that the local police department had
in fact arrested certain individuals for alleged thievery of
Respondent's property; and that Allen himself was pres-
ent at the bowling alley in the afternoon. Upon Allen's
failure to offer any explanation, Goebel instructed him
that faced with this contradiction the Respondent would
investigate further. After Allen left the office Speed and
Goebel remained behind to discuss the matter. They
were both "half convinced" that Allen was telling the
truth in view of his sincerity and self-composure. They
concluded that it was possible that some mistake was
made. Speed pointed out that Allen did have a twin
brother, and perhaps a further investigation with that in
mind would resolve the matter. Goebel agreed to investi-
gate further.
Speed testified with respect to the January 15 coner-
sation that he had engaged in with Allen, in his office,
when the two of them were alone. According to Speed
he instructed Allen that he wanted to ask him further
questions concerning his activities on January 5, and that
specifically he asked him where he was between the
hours of 9:07 and 10:55 a.m. According to Speed. Allen
responded that he was in the plant until sometime after
10 a.m., at which time he left the plant and drove his
pickup truck toward Plant 2 where on the way the trans-
mission became stuck in second gear. According to
Speed, Allen further explained that he parked it on a
street running north from the plant and thereafter en-
tered the union work center where he discovered that
his mother had "taken a turn for the worse," and his
presence at home was required. According to Speed.
Allen telephoned the home of another committeeman
and requested that they contact the committeeman at the
plant and tell the other committeemen to pick Allen up
at the bowling alley. Thereafter. Allen explained that he
retrieved his truck where he had parked it and drove it
to the parking lot of the bowling alley and met the com-
mitteemen at the bowling alley at which time the other
committeemen drove him home. Thereafter Allen re-
turned to the bowling alley at 5 p.m. and retrieved his
truck. According to Speed he questioned Allen as to
whether he loaned his truck to anyone else at 9 a.m. and
Allen stated that he had not. According to the testimnion
of Speed, Allen again displayed a confident demealor
during the intervie\.
Speed testified that he engaged in a subsequent con-
versation with Allen on January 15. Allen could "recall'
no such conversation. According to Speed he again
asked Allen whether he loaned his pickup truck to
anyone else on the morning of JanuarS 5. At that point
according to Speed. Allen stated. "Speed, when it's all
over and done, you'll find out I was not there. I was not
there." Again Allen did not request union representation.
Speed thereafter communicated with Goebel, reported
the conversation with Allen, and urged Goebel to
"check this out again."
On January 16 prior to the encounter with Allen.
Goebel and I3enner had entered the plant and were pro-
ceeding toward the foreman's office at which point
Goebel observed Allen near the assembly line. Goebel
advanced in the direction of Allen, whereas Benner
walked to the foreman's office. Benner went just inside
the doorway, stood, and observed the confrontation be-
tween Goebel and Allen from a distance of approximate-
ly 25 feet. Because of a certain amount of noise level in
the plant, Benner could not hear the conversation at that
distance. Goebel testified that when he engaged in this
conversation with Allen there were no employees pres-
ent within hearing distance. On cross-examination
Goebel testified that he did not stop to observe whether
anyone else was listening. Thereafter he testified that he
did not see any other employees. He further testified that
he and Allen stood close to one another so as to be
heard above the noise and they therefore spoke some-
what louder than normal. He testified that thereafter he
looked around and did not observe any other employees.
He explained that he purposely looked around to be cer-
tain that the two of them were engaging in a prix ate
conversation. He conceded that the foreman's desk. i.e..
a standup desk in the assembly area, at which he and
Allen were speaking, was approximately 5 feet from the
assembly line. Benner testified at first that he observed
no employees near the two individuals. but then qualified
DECISIONS OF NATIONAL LABOR RELATIONS O()ARD
that by excepting those persons who were working on
the assembly line. According to Goebel he had told
Allen that the Respondent had conducted a further in-
vestigation and that "the track led back to him." Allen
purportedly responded, "Well I don't understand, I
wasn't there." At that point according to Goebel he in-
structed Allen to tell him where he was if he were not at
the bowvling alley between 9 and I a.m., and that he
would check it out. He urged Allen to "come up with
something," inasmuch as it involved a "serious matter of
fraud equivalent to theft." He urged Allen to "think hard
and give me anything." According to Goebel, Allen
searched through his notes and stated that he was work-
ing on a case on January 5 during the morning between
9 and 11 a.m. in the plant involving an employee by the
name of D. Schlata. According to Goebel, Allen stated
that he telephoned the labor relations department and
spoke with an individual in that department by the name
of Dean Parmeinter at 9:15 a.m. on January 5. Goebel
testified that he told Allen that he would check it out.
Goebel denied Ihat at any point during the conversation
did Allen ask for union representation and insisted that at
no point did he tell Allen that a union representative was
not needed.
With respect to the January 16 conversation Allen tes-
tified that there wecre several employees present: that he
had finished speaking to one employee and was about to
speak to another employee when lie was interrupted by
Goebel; arid that at least two employees remained within
5 feet on the assembly line while they talked. He could
remember only the names of employees Tippet and
Beuman. He was uncertain as to how many employees in
total were present. Allen testified that he "believed" that
there were two or three employees standing around.
According to the testimony of employee Kenneth
Summers he was also present on that occasion. Summers
testified that on January 16 he was engaged in the work
of a sweeper. That job involves work that carries him
throughout various areas of the plant. On January 16 he
wanted to see Allen because of a problem that he had
concerning a finance company. He saw Allen engaging
in conversation with employees at the assembly line in
the axle department. Having observed Allen speaking to
other employees he decided to speak to Allen himself.
He started to walk toward Allen and as he did so he ob-
served Allen and Goebel engaging in a conversation.
When he first saw them he did not hear what was being
said, and he was unaware of Goebel's identity. Accord-
ing to his testimony as he approached within 12 feet of
the individuals he heard Allen state to Goebel: "Get me
my lawyer." Summers testified that at that point he real-
ized it was not the appropriate time to approach Allen
and he thereupon backed off. Summers heard no other
portion of that conversation. Benner and Goebel testified
that they did not observe Summers in the area. Tippet
and Beuman were not called upon to testify. Allen testi-
fied that on a date which he did not specify he contacted
his alternate committeeman and asked him whether he
could locate "anybody" who was present at the time that
he engaged in the conversation with Goebel on January
16. Accordingly, the alternate committeeman called
Allen 2 days later and informed him that most of the em-
ployees employed on that date were no longer "there"
and that they had been transferred and that most of them
were new employees and had "left."
Prior to the discharge of Allen the Respondent en-
gaged in an investigation with respect to the conduct of
at least one other committeeman; i.e., Willard Sergent.
Like Allen, Sergent had served as a union committeeman
fior approximately 7 years. He had been acquainted with
Allen for approximately 8 years. It is the Respondent's
obligation under the collective-bargaining agreement to
provide a collective-bargaining representative for an em-
ployee during a disciplinary or investigatory interview
which leads to discipline. Sergent testified that he was
aware of that obligation. Therefore he testified that when
he was called to the plant protection lobby at Plant 6 on
or about January 8 by his foreman, a Mr. Kennan, where
he encountered Kennan, Goebel, arid Benner, he immedi-
ately asked for his union representative. According to
Sergent, Goebel stated to him that he had only a couple
of questions that he would like to ask arid that there was
a probleni "to clear up." According to Sergent, Goebel
asked Sergent about his timecard of January 5 ad asked
him what time in fact he punched out. Sergent explained
that he had punched out sometime after 1 p.m. on Janu-
ary 5. Goebel asked him where he went after work arind
Sergent explained that after he punched out he went to
the bowling alley. According to Sergent at that point he
got up and left, and as he was leaving Goebel told him
without any further explanation that he was "on notice
until further notice.":'
According to Goebel the conversation was as follows:
Goebel told Sergent of the substance of Benner's report
as to Sergent's activities on January 5, i.e., that he was at
the bowling alley in the afternoon. Goebel told Sergent
that his timecard reflected that he had punched out at 7
p.m. that night and he was asked how he could collect
pay if he was not present at work. Sergent explained that
the answer was simple in that he had a special meeting;
that it occurred outside of the plant; and that he was
called upon to leave suddenly and apparently punched a
blank timecard which he turned in to his foreman on
Monday. Sergent explained that he had punched out at
1:30 p.m. but he could not explain who punched him out
at 7:30 p.m. According to Goebel, Sergent stated that "if
this thing is going much further" he might want union
representation. At that point Goebel told him that he had
only one more question. Sergent responded, "OK what is
it." Goebel proceeded to ask him another question, and
the interview ended. Sergent is still employed by the Re-
spondent and there is no evidence that any disciplinary
action was taken toward him.
Sergent filed no grievance with respect to the failure
to provide him with a union representative during an in-
vestigative interview concerning his conduct involving
his timecard on January 5. Similarly, Allen filed no such
grievance until after his discharge.
: his con ersalion occurld l Plllll 6 Allen',l rcspibiliit cols vers
'lant 2 3, 4 5, and lccasionall; s Plainl I
854
GENERAL MOTORS CORPORATION 855
C. Credibility Resolutions
The General Counsel argues that Allen should be
credited in his testimony with respect to the confronta-
tions with management representatives on January 12,
15, and 16. The General Counsel argues that it is improb-
able that a man of Allen's experience as a committeeman
over a period of 7 years when confronted with a serious
situation involving possible accusations of fraudulent
misuse of a timecard would not avail himself of assist-
ance by another superior union representative. 4 The
General Counsel points out that Allen was partially cor-
roborated on January 16 by Summers. The General
Counsel also argues that the Respondent's agent Goebel
engaged in similar conduct with respect to committee-
man Willard Sergent involving the investigation of the
same matter.
The Respondent argues that Allen because of his expe-
rience as a committeeman felt confident enough that he
could dispose of the matter quite simply and easily him-
self. It argues that Allen presented his version of the
facts in a confident, convincing manner, and by doing so
himself he presented an image of candor and sincerity.
The Respondent argues that Allen was aware that fellow
committeeman Willard Sergent had been interrogated,
had explained his whereabouts, and had suffered no re-
percussions. However, there is no evidence in the record
that Allen and Sergent communicated with one another
concerning this incident. Moreover, it would have been
premature as of January 12 for Allen to have assumed no
repercussions would ensue for Sergent. It is further con-
tended that there is no evidence in the record upon
which any motivation exists for the Respondent's agents
to have denied representation to Allen. Furthermore, it
points out the uncontroverted testimony of Goebel, a
man of 27 years' experience as a labor relations manager,
that he had never in the past breached his contractual
obligation to provide union representation during an in-
vestigatory interview and that at no time had he ever
been accused of such conduct prior to the investigation
of the incidents revolving about January 5.
Having reviewed carefully the testimony of the wit-
nesses concerning the interviews of January 12 and 15,
and having taken into consideration the demeanor of all
the witnesses, I credit the testimony of Goebel, Benner,
and Speed. Their testimony was mutually corroborative
and detailed, and they evinced a demeanor which was
more spontaneous, responsive, and certain than that of
Allen. The testimony of Allen with respect to these two
incidents was cryptic, conclusionary, and rendered with
a degree of uncertainty. Furthermore, I find the Re-
spondent's version of the substance of the conversation
much more plausible and inherently more believable than
that of Allen. Goebel had interrogated Allen and Willard
Sergent with respect to their whereabouts on the after-
noon of January 5. He apparently accepted Sergent's ex-
planation with respect to the double punchout on the ti-
mecard. Goebel similarly questioned Allen with respect
to his whereabouts on the afternoon of January 5 during
the January 12 interview.
' Allen himself had been insvoled in excess of 5(X) grie'ances during
his 7 years as commitleeman
Allen, however, insists that no inquiry was made to his
conduct on the morning of January 5. It is Benner's testi-
mony which I credit that he reported to Goebel Allen's
presence at the bowling alley at 9:05 a.m. on January 5.
Benner was present during the interview. Even Allen
concedes reference to Benner's investigation during the
interview. It is extremely improbable that the labor rela-
tions manager, the general foreman, and the plant secu-
rity guard would have met with Allen and that the inter-
rogation was limited to his conduct and whereabouts
after he punched out at noontime on January 5. Clearly
that would have been the area of least concern to the
Respondent. That is to say, the timecard had two pun-
chout times. The first punchout time was effectuated by
a telephone call from outside the plant to the foreman.
Allen admitted that he had not returned to the plant. Ob-
viously someone else punched him out. It is unlikely that
a conspiracy would have been involved, because had
Allen obtained someone else in the plant to punch him
out again at 7:30 p.m., he would have arranged for that
person to have had his card punched in prior to 7:30
p.m. Otherwise, it would have been utter foolishness to
have arranged a double punchout time on the timecard.
Having received the explanation for the late afternoon
punchout time it would have been inexplicable for the
Respondent's agents to cease their interrogation and not
proceed further based on the information submitted to
them by Benner concerning Allen's alleged morning ac-
tivities. Their testimony concerning such inquiry, and
their testimony of detailed explanations set forth by
Allen, was spontaneous, convincing, and rendered with-
out any indication of artifice or contrivance.
It is highly improbable that General Foreman Speed
would have engaged again in a second conversation on
January 15 with Allen limited to the narrow area of
Allen's afternoon activities of January 5 and at that point
asked Allen whether he desired to change his story.
Such an inquiry only makes sense if there were a much
more extensive interrogation.
I credit Speed's testimony with respect to the second
conversation on January 15 with Allen. Allen on direct
testimony merely stated that he recalled no further con-
versations on that date. He was not called in rebuttal to
specifically deny that a second conversation occurred.
As a witness Speed was a much more assured, certain,
and spontaneous witness than Allen. I found him far
more convincing. Accordingly, I conclude that the Re-
spondent specifically interrogated Allen as to his morn-
ing and afternoon activities of January 5 in the inter-
views conducted on January 12 and in the two inter-
views conducted by Speed on January 15. Allen testified
that he did not ask for a union representative during the
interview with Speed on January 15 because he saw no
problem with respect to his activities on the afternoon of
that date. Yet he testified that he asked for union repre-
senta:ion during the meeting of January 12 which in-
volved the "same issues." It is clear according to Allen's
testimony that during the January 12 incident the Re-
spondent was not attempting to associate Allen's pres-
ence at the bowling alley with the matter of thievery.
The thrust of his testimony therefore is that he did not
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
request representation on January 15 because it was un-
necessary in view of his proffered defense, and not be-
cause he was lulled into a sense of security by an earlier
misrepresentation by Goebel, which implied that he
would not be subject to discipline. However, as I dis-
credited Allen's denial that he was interrogated as to his
morning activities on January 5, I conclude that he was
interrogated on January 12 by Goebel and by Speed
later on January 15 as to his complete activities from
9:05 a.m. and thereafter, and I also conclude that he did
not ask for representation during the January 15 inter-
view because he was, as is argued by the Respondent,
confident of his position and his ability to handle the in-
terviews without assistance.
Inasmuch as I have concluded that Goebel, Speed, and
Benner are the more reliable and credible witnesses con-
cerning the interviews of January 12 and 15, I credit
their testimony that at no point during those conversa-
tions did Allen request a union representative. I do so
even assuming that Goebel engaged in the conversation
with Willard Sergent as Sergent had so testified. I do not
credit Allen's testimony that he requested a union repre-
sentative on January 12. Accordingly, whether or not
the Respondent denied Sergent's request for a union rep-
resentative is immaterial.5
The final credibility resolution in this case involves the
confrontation between Goebel and Allen on January 16.
On this occasion Goebel, the labor relations manager,
personally confronted Allen at the assembly line in the
plant concerning the same matters. He stressed the grav-
ity of the situation and referred to possible fraud in time-
card matters as being equivalent to a theft. According to
his testimony, he urged Allen to give him some further
facts upon which he could investigate. According to
Goebel's version of the encounter, the urgency of the
matter was becoming manifest and the investigation was
arriving at a critical stage. Yet it is the Respondent's
contention that Allen retained his composure and bra-
vura to the point where he continued his own defense
without requesting the assistance of union representation.
Such contention is unconvincing. I find it much more
plausible that Allen who had been confronted once
before by Goebel and twice by Speed and repeatedly
asked about his whereabouts on the morning of January
5 would have at this point realized the vulnerability of
his position, and sought some assistance of a union repre-
sentative in defending himself.
I find Allen's vivid testimony as to his exasperated re-
sponse in which he demanded his "lawyer" far more
convincing than Goebel's version. Furthermore, Allen
with respect to this conversation is corroborated by a
witness to the effect that at one point in the conversation
Allen demanded to see his "lawyer." The Respondent, in
its brief, attempts to characterize Summers' testimony as
internally inconsistent and inconsistent with that of
Allen. Contrary to the Respondent's contentions, the
record does not support that argument. For example, the
record does not disclose that Allen testified that only
5 There is no allegation that the Respondent's conduct with respect to
Sergent was violatise of the Act In any event, on the basis of demeanor,
I found Goebel to have been a much more certain, convincing, spontane-
ous, and credible witness than Sergent
two employees, Tippet and Beuman, were present, nor
does it support the Respondent's contention that Sum-
mers could not have been near enough to hear the early
part of the conversation wherein Allen asked for his
union representative. The record does not reveal that
Summers was so far away from Allen when the conver-
sation commenced that he could not have been within 12
feet when the demand for the "lawyer was made." Goe-
bel's testimony that he did not see Summers is not reli-
able in view of the fact that he did not recall seeing any
employees present whereas Benner conceded that em-
ployees who were working on the assembly line were
indeed present. Furthermore, Benner's testimony that he
did not see Summers in the area is not meaningful inas-
much as there is no indication that he had an unobstruct-
ed view of the entire area. Summers may very well have
been approaching Allen from Goebel's rear and from an
angle where he was not visible by Benner who was
standing just within the doorway to the foreman's office.
Finally, I see no basis upon which to conclude that
Summers was a biased witness. Neither the record nor
Summers' demeanor revealed any animosity toward the
Respondent. There is no evidence that he maintained any
personal or business relationship with Allen nor that he
was even his friend. The Respondent argues that because
Summers circulated a collection in the plant on behalf of
Allen shortly after Allen's discharge that Summers' testi-
mony must be therefore suspect because of some bias.
However, Summers testified without controversion that
as a sweeper in the plant it is part of his duties to move
throughout the plant while performing his duties. Ac-
cordingly, he has on several occasions taken up collec-
tions on behalf of other employees. With respect to the
discharge of Allen, Summers testified again without con-
troversion that he was requested by Allen's alternate
committeeman, Bob Emery, to take up a collection on
behalf of Allen which he did.
The Respondent further argues that the circumstances
whereunder Summers testified on behalf of the General
Counsel are suspect. This contention rests upon the fact
that Summers executed an affidavit at the request of the
Board agent approximately 3 weeks prior to the hearing.
Summers, however, testified convincingly and credibiy
that the day after Allen's discharge when he became
aware of Allen's predicament he advised the committee-
men of what he had heard on January 16, at the time
Allen and Goebel were engaged in a conversation. Sum-
mers testified that he did not speak to Allen directly
until after he executed an affidavit on July 19 at the re-
quest of the Board agent. On these sparse facts I cannot
conclude that there is sufficient basis upon which to raise
an inference that there was some conspiracy between
Allen and Summers with respect to the submission by
Summers of an affidavit on July 19. Had there been such
conspiracy it would have seemed more likely that Allen
would have identified Summers as one of the employees
at the assembly line rather than candidly admit that he
could not recall the identity of all employees present on
January 16. Furthermore, had there been some conspir-
acy it would have been more likely that Summers would
have testified to more of the conversation between Allen
956
GENERAL MOTORS CORPORAIOI)N
and Goebel, at least to the extent of definitely affixing
the critical request for a union representative at the be-
ginning of the conversation.
Accordingly, I conclude that Summers who was em-
ployed by the Respondent at the time of the hearing was
an unbiased witness who had nothing to gain by testify-
ing, pursuant to a subpena, for the General Counsel, and
who testified at the risk of incurring the enmity of the
Respondent or at least its supervisors. Furthermore,
Summers' demeanor revealed that he was assured, cer-
tain, spontaneous, responsive, and a candid witness.
Goebel, however, did not testify with the same assurance
as he exhibited with respect to the earlier interviews. I
therefore conclude that during the January 16 conversa-
tion between Allen and Goebel that Allen did indeed
make a request for union representation. Inasmuch as
Goebel testified that Allen made absolutely no request
for representation, I not only credit the testimony of
Allen that such request was made but I also further
credit him that the request was made at the commence-
ment of the interview.
Analysis and Conclusions
It is undisputed that the interviews to which Allen was
subjected constituted investigative interviews that were
held under such circumstances that, in the absence of
any negating statements by the Respondent's agents, the
employee would reasonably have feared that he was sub-
ject to potential disciplinary action. Further, there is no
dispute as to the applicability to this factual situation of
the principles set forth in N.L.R.B. v. J. Weingarten, Inc.,
420 U.S. 251 (1975), i.e., that the employee is entitled to
have a union representative present, if requested.
The Board has held that "once such a valid request is
made, the burden is on the employer to either (I) grant
the request (2) discontinue the interview, or (3) offer the
employee the choice between continuing the interview
unaccompanied by a union representative or having no
interview at all." General Electric Company, 240 NLRB
479, 481 (1979).
The principal issue raised by the parties in this case is
a factual issue as to whether or not Allen made such
valid request. It is conceded that a request by an employ-
ee for his "lawyer" constitutes a request for union repre-
sentation in the Respondent's plant. As set forth above, I
have found that on January 16 after three prior inter-
views Allen did make a request for a union representa-
tive at a meeting with Labor Relations Manager Goebel
prior to Goebel's further investigation of Allen's suspect-
ed timecard fraud of January 5, 1979. As indicated by
the facts above, three prior meetings were conducted by
Goebel and by General Foreman Speed. Because of the
Respondent's reluctance to conclude that the discrimina-
tee had not presented an accurate representation of the
facts, a final decision by the Respondent as to potential
discipline for Allen was postponed. Thus, Goebel fol-
lowed Speed's recommendation of January 15 to "check
out" the matter further. Goebel decided to do this and
again sought to obtain further information from Allen.
This time, however, Allen was impressed with the criti-
cal nature of his position and he demanded union repre-
sentation prior to any further investigatory interview and
interrogation. I credit Allen's testiniony that at that point
Goebel persisted in the interview by stating that he
wanted to "clear up a few simple matters" and that
Allen did not need union representation. Goebel then
proceeded to interrogate Allen and Allen responded.
Thereafter. as a consequence of Goebel's January 16 in-
vestigation as to the purported timecard fraud of January
5, Allen was discharged.
The Respondent argues that Allen did not refuse to
answer questions nor did he personally attempt to obtain
a union representative, and that no misrepresentations
were made by Goebel.
Within the context of the conversation betoween
Goebel and Allen on January 16 1 cannot conclude that
Goebel's statement to Allen to the effect that he did not
need a union representative amounted to a misrepresenta-
tion to Allen that he was not in jeopardy of discipline.
The January 1 confrontation was a continuation of a
persistent series of interrogatories directed to a matter of
possible timecard fraud. It is undisputed that timecard
fraud normally subjects an employee to discipline. Clear-
ly the persistent interrogation as to Allen's whereabouts
indicated that the nature of his response was critical.
Thus, the manifest significance of the January 16 conver-
sation against the background of prior interrogations was
that Allen was in jeopardy of some adverse consequence.
For the foregoing reasons I credit Allen that Goebel did
in fact fail and refuse to respond to Allen's request for
his "lawyer," and did make the statement that he did not
need one and that he wanted to ask a few more ques-
tions. Although I conclude that such a response by
Goebel did not amount to a statement that could be rea-
sonably construed by Allen as a representation that no
discipline would ensue in consequence of his answers, I
do conclude that it amounted to a denial of representa-
tion by the Union to him without offering him an option
to remain silent without a further investigator>y iterroga-
tion or to participate without union representation. I
conclude under the circumstances of the interview that
an option was exercised but it was not exercised by
Allen but rather was exercised by Goebel who proceed-
ed to direct questions to Allen. Under such circumstance
I conclude that Allen was thereby constrained to re-
spond to Goebel's inquiries, and did not voluntarily
waive his Weingarten rights by so responding. Super V'alu
Xenia, a Division of Super Valu Stores, Inc., 236 NLRB
1581 (1978)
As the Board has stated, "Under no circumstances
may the employer continue the interview without grant-
ing the employee union representation, unless the em-
ployee voluntarily agrees to remain unrepresented after
having been presented by the employer with the choices
mentioned in option (3) above, or if the employee is oth-
erwise aware of those choices [an interview without rep-
resentation or no interview at all]." United States Povtal
Service, 241 NLRB 141 (1979). The Respondent argues in
its brief that Allen was aware of his right to refuse to
continue with the interview. The Respondent bases this
conclusion on Allen's extensive experience as a commit-
teeman. However, there is no evidence that Allen as
actually aware that he possessed the option to discontin-
S 5
858 DECISI()NS OF NATIONAL LABOR RELATIONS O()ARD
ue the interview or to proceed with the interview with-
out a union representative. I cannot infer that because of
Allen's experience in presenting grievances he was aware
of or should have been aware of those options. There is
no evidence that he at any time participated in any disci-
plinary interviews or investigatory interviews leading to
discipline, or that he had processed any grievances con-
cerning the failure of the Respondent to provide repre-
sentation during an investigatory-disciplinary interview.
Indeed, Goebel testified that prior to the January 5 inci-
dent he had never been accused of failing to provide a
union representative upon request during an investiga-
tory-disciplinary interview.
For the foregoing reasons I conclude that the Re-
spondent violated Section 8(a)(1) of the Act by failing to
provide Allen with union representation during the in-
vestigatory interview of January 16, 1979.
CONCI.USIONS OF LAW
I. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(l) of the Act
on January 16, 1979, by requiring employee Jerry Allen
to submit to an interview with the Respondent's labor re-
lations manager, which resulted in his discharge, while
denying his request for union representation at the inter-
view.
THE REME)Y
Having found that the Respondent has violated the
Act, 'I shall recommend that it be required to cease and
desist therefrom and from like and related conduct, and
to post appropriate notices.
Having concluded that the unfair labor practices of the
Respondent led directly to the discharge of Jerry Allen,
it is my conclusion that an appropriate and meaningful
remedy must provide for affirmative relief in the form of
a restoration of the status quo ante, i.e., reinstatement, re-
imbursement of lost wages, and an expurgation of Allen's
personnel records. United States Postal Service, supra:
Super Valu Xenia. a Division of Super Valu Stores, Inc..
supra. Accordingly, it shall be recommended that the Re-
spondent be ordered to offer Jerry Allen immediate and
full reinstatement to his former or substantially equiva-
lent position without prejudice to his seniority or other
rights and privileges and shall make him whole for any
loss of earnings he may have suffered as a result of the
discharge which resulted from the investigatory inter-
view of January 16, 1979, in which he was denied his
right to union representation. Any backpay found to be
due shall be computed in accordance with the formula as
set forth in F. W. Woolworth Company, 90 NLRB 289
(1950), and Florida Steel Corporation, 231 NLRB 651
(1977).e It shall be further recommended that the Re-
spondent be ordered to expunge from its personnel re-
cords any reference to the discharge of Jerry Allen on
January 17, 1979.
'See, generally. Iir Plumbing d Iteatig Co.. 138 NLRB 716 (1962}
Upon the basis of the entire record, the findings of fact
and conclusions of law, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER 7
The Respondent, General Motors Corporation, De-
troit, Michigan, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Requiring any employee to take part in an inter-
view, meeting, or conference, where the employee has
reasonable grounds to believe that the matters to be dis-
cussed may result in the employee's being the subject of
disciplinary action, and where it has refused that employ-
ee's request to be represented at such interview, meeting,
or conference by a labor organization.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under the National Labor Relations Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Offer Jerry Allen immediate and full reinstatement
to his former job or, if that job no longer exists, to a sub-
stantially equivalent position without prejudice to his se-
niority and other rights and privileges, and make him
whole for any loss of earnings he may have suffered by
reason of the discharge which resulted from the January
16, 1979, investigatory interview in the manner set forth
in the section of this Decision entitled "The Remedy."
(b) Expunge from its personnel records any reference
to the discharge of Jerry Allen on January 17, 1979.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other docu-
ments necessary and relevant to analyze and compute the
amount of backpay due under this Order.
(d) Post at its truck and Coach Plant in Pontiac,
Michigan, copies of the attached notice marked "Appen-
dix."8 Copies of said notice, on forms provided by the
Regional Director for Region 7, after being duly signed
by the Respondent representative, shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained by for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
'In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions. and recommended Order herein shall, as prosided in
Sec. 102.48 of the Rules and Regulations. be adopted by the Board and
become its findings, conclusions and Order, and all objections theretlo
shall be deemed waived for all purposes.
" In the event that this Order is enfoirced by a Judgment of a United
States Court of Appeals, the words in the nolice reading "Posted by
Order of the National Labor Relations Board" shall read "'Posted Pursu-
ant to a Judgment of the United States Court of Appealk Enforcing an
Order of the National Labor Relations Board"
GENERAL. MOTORS CORPORAIION
(e) Notify the Regional Director for Region 7, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dis-
missed as to any alleged violations of the Act not found
herein.
859