Greyhound Lines, Inc.

National Labor Relations Board - Board Decisions

Jan 15, 1985

273 N.L.R.B. 1443 (N.L.R.B. 1985)

GREYHOUND LINES 1443
Greyhound Lines, Inc. and Harry Lehman. Case 2-
CA-18223
15 January 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 29 March 1983 Administrative Law Judge
Raymond P. Green issued the attached decision.
The Respondent filed exceptions and a supporting
brief,' and the General Counsel filed a brief in sup-
port of the judge's decision.
The Board has Considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 2 and
conclusions 3 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
preventing employee Lehman's union representa-
tive from participating in an investigatory inter-
view of Lehman. As a remedy for the Weingarten
violation, the judge, applying Kraft Foods, 251
NLRB 598 (1980), recommended that the Respond-
ent be required to make whole employee Lehman
for lost wages resulting from the Respondent's dis-
cipline of him for alleged insubordination. Howev-
er, in our recent decision in Taracorp Inc., 273
NLRB 221 (1984), we overruled Kraft Foods and
held that Section 10(c) of the Act precludes a
make-whole remedy for Weingarten violations
1 In its exceptions the Respondent contends that the Union waived the
right of employees to have union representation at investigatory inter-
views by failing to file a gnevance over the Respondent's written policy
of requiring union representatives to remain silent at such interviews.
Member Hunter notes that, although the judge did not address this issue,
it is undisputed that such policy was not embodied in the parties' collec-
tive-bargaining agreement and that the Union did not otherwise expressly
agree to the policy. Furthermore, he notes that the record contains evi-
dence that the Union opposed the Respondent's policy in communica-
tions with the Respondent's corporate headquarters and by filing unfair
labor practice charges. Without reaching the issue of whether a union
can waive employees' Weingarten nghts, Member Hunter finds that in the
circumstances here the Union did not clearly and unmistakably waive
such rights.
2 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.
At fn. 16 of his decision the judge referred to "Section 8(c)" of the
Act, whereas it is clear from the context that he meant to refer to Sec
10(c) This inadvertent error does not affect our decision
3 Member Hunter notes that at fn. 13 of his decision, the judge cited
Pacific Telephone & Telegraph Co., 262 NLRB 1048 (1982), a case in
which Member Hunter dissented. Since the judge did not rely on that
case to find a violation Member Hunter's disagreement with that case
does not affect his view of the present case. Member Dennis finds it un-
necessary to pass on Pacific Telephone & Telegraph Co.
where the discipline of an employee is for cause.4
Accordingly, consistent with Taracorp, we shall
modify the judge's recommended Order to delete
the make-whole and expunction remedies. We shall
order the Respondent to cease and desist from de-
priving any employee of his right to union repre-
sentation at an investigatory interview which the
employee reasonably believes might result in disci-
plinary action, by requiring the union representa-
tive to remain silent throughout the interview. We
shall further order the Respondent to post an ap-
propriate 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, Greyhound Lines, Inc., Phoenix, Arizo-
na, 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.
4 As further explained in Taracorp, discipline is "for cause" within the
meaning of Sec 10(c) if the employee was not disciplined for union or
other protected concerted activity and the reason for the discipline was
not, itself, an unfair labor practice. Since It is clear in the present case
that employee Lehman was not disciplined for asserting his right to union
representation in the investigatory Interview, but for alleged insubordina-
tion, his discipline was "for cause" within the meaning of Sec. 10(c) and
a make-whole remedy is therefore precluded.
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT deprive any employee of his right
to union representation at an investigatory inter-
view which the employee reasonably believes may
273 NLRB No. 180
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
result in disciplinary action, by requiring the union
representative to remain silent throughout the
interview.
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.
GREYHOUND LINES, INC.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge This
case was heard by me in New York, New York, on De-
cember 16, 1982. 1 The charge in the case was filed on
July 20, 1981, and the complaint was issued by the Re-
gional Director for Region 2 of the Board on October
26, 1981.
In substance, the complaint alleges that on March 11,
1981, the Respondent conducted an investigatory inter-
view with Harry Lehman, during which it did not allow
Lehman's union representative to participate. As a conse-
quence, the General Counsel contends that the Respond-
ent is liable for the subsequent discharge of Lehman and
is required to make him whole from the date of his dis-
charge until the date that he was subsequently reinstated
pursuant to an arbitration award.
The Respondent denies that it did not allow the union
representative to participate in the aforesaid interview. It
also asserts that the decision to discharge Lehman was
made prior to the interview and that it did not base its
decision upon any information received during the ,inter-
view. Thus, according to the Respondent, even if it is
concluded that the interview was not conducted in ac-
cordance with the standards set forth in NLRB v. J.
Weingarten 2 the Respondent nevertheless is not liable for
backpay because it would have discharged Lehman not-
withstanding the interview.
Based on the entire record in this proceeding, includ-
ing my observation of the demeanor of the witnesses,
and upon the arguments of counsel, I make the following
FINDINGS OF FACT
I. JURISDICTION
Greyhound Lines, Inc. is a California corporation en-
gaged in the business of providing interstate bus trans-
portation. It has facilities and terminals throughout the
United States, including the terminal involved, located at
625 Eighth Avenue, New York, New York Annually,
the Company derives gross revenues in excess of $50,000
from the transportation of passengers, freight, and com-
modities from New York to points located outside the
State of New York. It is conceded by the Respondent
1 Although previously consolidated with Cases 2-CA-18738 and 2
CA-18830, the General Counsel moved to sever those cases and have
them remanded to the Regional Director in view of an agreement by the
parties to have the Issues therein submitted to arbitration I granted this
motion
2 420 U S 251 (1975)
and therefore concluded 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
It is agreed by the parties that Local 1202, Amalga-
mated Transit Union, AFL-CIO is a labor organization
within the meaning of Section 2(5) of the Act.
It appears that the Respondent has maintained a col-
lective-bargaining relationship with the Amalgamated
Transit Union for many years and that Local 1202 has
been the local union recognized as the representative of
certain of the Respondent's New York employees, in-
cluding employees who work at 625 Eighth Avenue.
Lehman, the Charging Party, is a member of Local 1202.
III. THE OPERATIVE FACTS
It seems that when the Supreme Court issued its deci-
sion in NLRB v. J. Weingarten, supra, the Company insti-
tuted a policy whereby at investigatory interviews an
employee who requested union representation would be
afforded that opportunity, but the representative would
not be allowed to participate in the interview. Accord-
ingly, the testimony in this case indicates that it was cus-
tomary for management to ritually announce at the
outset of all such interviews that, although a union repre-
sentative was entitled to be present, the representative
would be required to remain silent. In relation to this
practice, it also appears that this came about not as a
result of any agreement with the Union, but rather as a
policy unilaterally promulgated by the Company.
On March 9, 1981, Harry Lehman had an altercation
with his supervisor, Fred Perez Basically, Lehman was
asked to remove a sweater he was wearing and to put on
the jacket which was part of his uniform When Lehman
refused, he got into an argument with Perez and made a
few intemperate remarks to the latter As a consequence,
Lehman was told to punch out for the remainder of his
shift and to report on March 10 to the office of the di-
rector of terminals, Robert Langan On the same day,
the Company made a check of Lehman's bank (cash reg-
ister), but found everything to be in order 3
On March 10 Lehman went to the terminal but found
that Langan was not in. He was told to go home and not
to punch in. He also was told to report to Langan's
office on the following day.
About 10 a m. on March 11 Lehman called the Union
and asked to have a representative accompany him to the
interview scheduled for that afternoon. As none of the
union representatives were available and, as the Compa-
ny refused to postpone the meeting, an employee named
Pierri (who formerly was a shop steward) was designat-
ed by the Union to represent Lehman On the same
morning, Langan notified Union Agent Axelrod that
Lehman was going to need a representative for the inter-
view.4
3 Lehman had previously been suspended in December 1980 for failing
to follow instructions
4 Apparently this was during a telephone conversation when Axelrod
asked the Company to postpone the meeting because no union agents
were available
GREYHOUND LINES 1445
The meeting commenced about 1 p.m. and present for
the Company were O'Toole and Langan. According to
Pierri and Lehman, at the outset of the meeting they
were told that, although Pierri could be present, he had
to remain silent during the interview. From that point on
Lehman was asked a series of questions based on reports
previously submitted on March 10 by Perez and a Mr.
Simpson. Lehman responded to the questions and to a
large extent admitted the matters contained in the afore-
mentioned reports. At one point during the meeting,
Pierri started to ask a question, and was told that, al-
though he normally would not be allowed to speak, he
would be given some leeway because he had not been a
union representative for some time. 6 Pierri testified that,
although he did ask one question, he thereafter remained
silent because he understood the Company's instructions
and policy to mean that he was not permitted to partici-
pate in the interview. At tlie close of the interview,
Lehman indicated that he might have been a little up-
tight on March 9, as his wife was sick and he was under
a lot of pressure. At this point, the interview concluded
and Lehman and Pierri were asked to leave for about 10
to 15 minutes. When they returned, Lehman was told
that his employment was being terminated and he was
handed a document called a "Form Six," which read as
follows:
On the above date you committed the below
listed infractions.
1. You failed to comply with your supervisors in-
structions.
2. You used loud and abusive lanaguage and
acted in an ungentlemanly like manner in front of
Greyhound customers.
3. You showed gross disrespect towards your su-
pervisor.
Your record is hereby charged with the above
listed infractions.
Due to the seriousness of the infractions listed
above, you are hereby discharged from Greyhound
Lines Inc. effective 3-11-81.6
Respondent's witnesses, O'Toole and Langan, asserted
that the decision to discharge Lehman was made on
March 10, based on the reports submitted that day by
Perez and Simpson. In essence, they assert that the inter-
view was, in reality, a formality held in part because a
few arbitrators had concluded, in agreement with the
Union's contention, that such interviews were required
under the collective-bargaining agreement as a precondi-
tion for discharge. 7 However, it is clear that at no time
5 Dunng the interview, Langan made handwritten notes which were
typed up in the form of a transcnpt.
▪ Shortly thereafter, Lehman was given a corrected copy of the form 6
which changed the final sentence to, "Due to the senousness of the in-
fractions listed above, and your past work record, you are hereby dis-
charged from Greyhound Line Inc. effective 3-11-81."
• With some limited exceptions, the collective-bargaining agreement
requires that a full investigation be made prior to a discharge Other arbi-
trators, who have heard cases Involving the Company, have held that the
"full investigation" requirement may be met without the need to inter-
view the employee affected.
prior to the interview, and at no time during the inter-
view itself, did O'Toole or Langan tell Lehman that
either a decision to discharge him had been made or that
such a decision was ever contemplated. Indeed, from
Lehman's point of view (and mine), it seems that the
Company's representatives were conducting a thorough
and searching interrogation of Lehman so as to ascertain
whether the latter contested or admitted the facts report-
ed by Perez and Simpson. In fact, Lehman admitted
most of the facts and it was only after the interview was
concluded that he was told of the discharge decision.
Also, it was only after the interview had ended that the
form 6 was prepared and given to Lehman. Moreover,
although Langan testified that the decision had been
made before the interview commenced, he did acknowl-
edge that he could have been persuaded to change his
mind if the interview had adduced evidence of other
mitigating circumstances. For example, Langan stated
that if he had learned that Lehman was faced with a seri-
ous family illness he would have been "very sympathetic
to him." As noted above, Lehman did refer to an illness
to his wife, but the details thereof were not explored.
Perhaps if Pierri did not feel inhibited by the Company's
policy of barring his participation, this might have been
an area in which he could have elicited facts in support
of Lehman.
With respect to Pierri's involvement in the meeting,
both Langan and O'Toole testified that when Pierri tried
to interject, they told him that although they normally
would not allow the representative to speak, they would
make an "exception" in his case. In this regard, they con-
ceded, however, that this exception was contrary to
company policy as it existed at that time.
Subsequent to his discharge, Lehman filed a grievance
on March 27, 1981, and an arbitration hearing was held
on February 5, 1982. The issue presented for arbitration
was solely whether the discharge of Lehman was for suf-
ficient cause under the collective-bargaining agreement.
The issue in this case, involving whether Lehman was
denied his right to union representation at the interview
on March 11, 1981, was neither presented to the arbitra-
tion forum nor decided. 8 It is noted that at the arbitra-
tion hearing the Company attempted to put into evi-
dence the transcript of the March 11 interview, no doubt
to show that Lehman had previously admitted the al-
leged acts of misconduct upon which the Company
based its discharge decision. However, these notes were
rejected by the arbitration "panel and were not received
into evidence.
On April 23, 1982, Arbitrator Thomas A. Knowlton
issued a decision concluding that Lehman's conduct on
March 9 was not sufficiently serious so as to warrant his
discharge. Accordingly, the Company was ordered to re-
instate Lehman to his former job and the Company com-
plied. However, the arbitrator refused to grant Lehman
any backpay for the period that he was unemployed.
The Respondent does not contend that this case should be deferred
to the arbitrator's award under the standards of Spielberg Mfg. Co., 112
NLRB 1080 (1955).
1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. ANALYSIS
In NLRB v. J. Weingarten, 420 U.S. 251 (1975), the Su-
preme Court held that an employee has a Section 7 right
to request union representation at an investigatory inter-
view where the employee reasonably believes that the in-
vestigation will result in disciplinary action. In reaching
this conclusion the Court approved the Board's rationale
and stated.
The Board's construction also gives recognition to
the right when it is most useful to both employee
and employer. A single employee confronted by an
employer investigating whether certain conduct de-
serves discipline may be too fearful or inarticulate
to relate accurately the incident being investigated,
or too ignorant to raise extenuating factors. A
knowledgeable union representative could assist the
employer by eliciting favorable facts, and save the
employer production time by getting to the bottom
of the incident occasioning the interview. Certainly
his presence need not transform the interview into
an adversary contest. Respondent suggests nonethe-
less that union representation at this stage is unnec-
essary because a decision as to employee culpability
or disciplinary action can be corrected after the de-
cision to impose discipline has become final. In
other words, respondent would defer representation
until the filing of a formal grievance challenging the
employer's determination of guilt after the employ-
ee has been discharged or otherwise disciplined At
that point, however, it becomes increasingly diffi-
cult for the employee to vindicate himself, and the
value of representation is correspondingly dimin-
ished. The employer may then be more concerned
with justifying his actions than re-examining them
While the Supreme Court dealt with the question of
whether an employer may deny a request for union rep-
resentation in investigatory interviews, it did not specifi-
cally address another and older line of cases where the
Board had concluded that an employer violates the Act
when it denies an employee union representation during
a disciplinary interview 9 Thus, it is settled that the right
to union representation is held at an investigatory inter-
view, but that such a right does not adhere to "run-of-
the mill shop floor conversations, as for example, the
giving of instructions on training or needed corrections
of work techniques."' °
Subsequent to the Board's decision in Certified Grocers,
227 NLRB 1211 (1977)," where it held that the Wein-
garten rights applied to disciplinary meetings, the Board
reversed itself in Baton Rouge Water Works, 246 NLRB
995 (1979). In the latter case, a majority of the Board
drew a distinction between those meetings where the sole
purpose was to notify an employer of disciplinary action
already decided and those meetings where the purpose
9 See, e g, Texaco, 168 NLRB 361 (1967), Chevron Oil Co, 168 NLRB
574 (1967), Jacobe-Pearson Ford, 172 NLRB 594 (1968)
1 ° Quality Mfg Co , 195 NLRB 195, 199 (1972), enfd sub nom Ladies
Garment Workers v Quality Mfg Co , 420 U S 276 (1975)
" The Board's decision was denied enforcement by the Ninth Circuit
Court of Appeals at 578 F 2d 449 (1978)
was otherwise. As to the former, the Board concluded
that an employee had no right to union representation
whereas such a right existed in the context of investiga-
tory meetings Yet even here, the distinction was nar-
rowly drawn and the Board noted (246 NLRB at 997).
We stress that we are not holding today that
there is no right to the presence of a union repre-
sentative at any "disciplinary" interview. Indeed, if
the employer engages in any conduct beyond
merely informing the employee of a previously
made disciplinary decision, the full panoply of pro-
tections accorded the employee under Weingarten
may be applicable. Thus, for example, were the em-
ployer to inform the employee of a disciplinary
action and then seek facts or evidence in support of
that action, or to attempt to have the employee
admit his alleged wrongdoing or to sign a statement
to that effect, or to sign statements relating to such
matters as workmen's compensation, such conduct
would remove the meeting from the narrow holding
of the instant case, and the employee's right to
union representation would attach In contrast, the
fact that the employer and employee thereafter en-
gaged in a conversation at the employee's behest or
instigation concerning the reasons for the previously
determined discipline will not, alone, convert the
meeting to an interview at which the Weingarten
protections apply.
In summary, as long as the employer has reached
a final, binding decision to impose certain discipline
on the employee prior to the interview, based on
facts and evidence obtained prior to the interview,
no Section 7 right to union representation exists
under Weingarten when the employer meets with
the employee simply to inform him of, or impose,
that previously determined discipline To the extent
that the Board has in the past distinguished between
investigatory and disciplinary interviews, in light of
Weingarten and our instant holding, we no longer
believe such a distinction to be workable or desira-
ble. It was this distinction which Certified Grocers
abandoned, and to that extent we still believe the
decision was correct. Thus, the full purview of pro-
tections accorded employees under Weingarten
apply to both "investigatory" and "disciplinary"
interviews, save only those conducted for the exclu-
sive purpose of notifying an employee of previously
determined disciplinary action.12
Following the Supreme Court's decision in NLRB v.
Weingarten, supra, there existed some confusion as to
precisely what role a union representative would play
during the course of a meeting and it appears that some
companies, like Greyhound, took the position that the
union representative should remain silent. On August 27,
1980, the Board issued two decisions which dealt with
this issue, each of which concluded that an employer
could not insist or require a union representative to
remain silent at an interview at which the employee had
12 See also Gulf States Mfgrs , 261 NLRB 852 (1982)
GREYHOUND LINES 1447
the right to have his representative present Southwestern
Bell Telephone Co., 251 NLRB 612 (1980), and Texaco,
251 NLRB 633 (1980) 13 In the former case the Board
stated:
In agreeing with the Administrative Law Judge's
findings and conclusions on this issue, it is our view
that the Supreme Court, in the course of its Wein-
garten decision, intended to strike a careful balance
between the right of an employer to investigate the
conduct of its employees at a personal interview,
and the role to be played by a statutory representa-
tive who is present at such an interview. It is clear
from the Supreme Court's decision that the role of
the statutory representai we at an investigatory
Interview is to provide "assistance" and "counsel"
to the employee being interrogated. However, the
Supreme Court made it equally clear that the pres-
ence of the statutory representative "need not trans-
form the interview into an adversary contest," or
indeed, any type of collective-bargaining confronta-
tion. Clearly, then, an employer's right to regulate
the role of the statutory represntative at an investi-
gatory interview is limited to a reasonable preven-
tion of such a collective-bargaining or adversary
confrontation with the stat utory representative.
In the instant case, the Respondent, by demand-
ing the silence of Gottschalk's union steward until
after Gottschalk had confessed to the charges, did
not engage in a reasonable prevention of a collec-
tive-bargaining or adversary confrontation with the
statutory representative Rather, the Respondent at-
tempted from the very outset of the interview to
stifle any participation by the union steward during
the intervew. At the time that Hubbard demanded
McQuiller's silence, there was no indication that
McQuiller had sought or would seek to turn the
interview into a collective-bargaining or adversary
confrontation.
We note, further, that the interview Itself, as well
as its outcome, demonstrates the critical need for
the rights granted to employees under Weingarten.
For as the Supreme Court stated in Weingarten,
often "an investigative interview is conducted by
security specialists; the employee does not confront
a supervisor who is known or familiar to him, but a
stranger trained in interrogation techniques" Simi-
larly, Gottschalk was confronted at the interview
by Hubbard, a security supervisor and former FBI
agent who was trained in interrogation techniques
and who used those techniques to procure a total
written confession from Gottschalk. Obviously, the
mere silent presence of G ottschalk's union steward
at the interview was insufficient to alter the imbal-
13 The Board's decision in Texaco was enforced in the Ninth Circuit
Court of Appeals on October 16, 1981, 659 F 2d 124
It is noted that in Pacific Telephone & Telegraph Co, 262 NLRB 1048
(1982), the Board concluded that the Company violated the Act when it
refused to permit employees to consult with their union representatives
prior to interviews which they had reason to believe would result in dis-
cipline
ance which the Supreme Court sought to alleviate
in its Weingarten opinion.
In enforcing the Board's decision in Texaco, supra, the
court, in NLRB v. Texaco, 659 F 2d 124, stated.
The more novel and significant contention ad-
vanced by Texaco is that the right to a union repre-
sentative at an investigatory interview does not en-
compass any right to have the union representative
speak. Texaco cites language from Weingarten, in
which the Court, after noting that the employer has
no duty to bargain with the union representative at
an interview, stated:
"The representative is present to assist the em-
ployee, and may attempt to clarify the facts or
suggest other employees who may have knowl-
edge of them. The employer, however, is free to
insist that he is only interested, at that time, in
hearing the employee's own account of the
matter under investigation" Brief for Petitioner,
at 22.
420 U.S at 260, 95 S.Ct at 965. We agree with the
Board here that this language (taken by the Court
from the Board's brief in Weingarten) is directed
toward avoiding a bargaining session or a purely
adversary confrontation with the union representa-
tive and to assure the employer the opportunity to
hear the employee's own account of the incident
under investigation The passage does not state that
the employer may bar the union representative from
any participation. Such an inference is wholly con-
trary to other language in the Weingarten opinion
which explains that the representative should be
able to take an active role in assisting the employee
to present the facts.
In refusing to permit the representative to speak,
and relegating him to the role of a passive observer,
the respondent did not afford the employee the rep-
resentation to which he was entitled. The Board
properly found that Texaco violated section 8(a)(1)
of the Act.
In relation to these types of cases, another problem has
had to be dealt with, namely the question of remedial
relief. In this respect, the problem arises because there
are circumstances where even though an interview was
conducted in violation of the employees' Section 7
rights, it nevertheless is apparent that the discipline was
justified and not issued for discriminatory reasons." In
Kraft Foods, 251 NLRB 598 (1980), a Board majority
(Member Jenkins dissenting in part) reversed the recom-
mendation of an administrative law judge to the effect
that the employee be reinstated with backpay, because it
14 Sec 10(c) of the National Labor Relations Act provides, inter aim,
that "[fi]o order of the Board shall require the reinstatement of any indi-
vidual as an employee who has been suspended or discharged, or the
payment to him of any back pay, if such individual was suspended or dis-
charged for cause"
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was shown that the employer's decision was not based
on any information obtained during the unlawful inter-
view." In this respect, the Board announced the follow-
ing standard to be applied:
In determining the appropriate remedy for a re-
spondent's violation of an employee's Weingarten
rights, the Board applies the following analysis. Ini-
tially, we determine whether the General Counsel
has made a prima facie showing that a make-whole
remedy such as reinstatement, backpay, and expun-
gement of all disciplinary records is warranted. The
General Counsel can make this showing by proving
that respondent conducted an investigatory inter-
view in violation of Weingarten and that the em-
ployee whose rights were violated was subsequently
disciplined for the conduct which was the subject
of the unlawful interview.
In the face of such a showing, the burden shifts
to the respondent. Thus, in order to negate the
prima facie showing of the appropriateness of a
make-whole remedy, the respondent must demon-
strate that its decision to discipline the employee in
question was not based on information obtained at
the unlawful interview. Where the respondent meets
its burden, a make-whole remedy will not be or-
dered. Instead, we will provide our traditional
cease-and-desist order in remedy of the 8(a)(1) vio-
lation. 1 6
There is no question in my mind that when Lehman
was notified to report to Langan on March 10 and 11,
after his altercation with Supervisor Perez on March 9,
1981 (and after his bank had also been checked), that he
had a reasonable basis for believing that the forthcoming
interview might lead to disciplinary action. Also, the
facts show that on March 10 Lehman asked to have a
" In Kraft Foods, the employee denied, at the interview, that he was
involved in a fight The employer's decision to discharge the employee
was based on interviews with other witnesses who had observed the
fight
16 See also Ohio Masonic Homes, 251 NLRB 606 (1980), Coyne Cylin-
der Co, 251 NLRB 1503 (1980), ITT Corp, 261 NLRB 229 (1982)
It is noted however that some of the circuit courts have taken a some-
what different approach from the Board regarding the remedy In NLRB
v Potter Signal Co, 600 F 2d 120 (8th Or 1979), that court held that
even where an employee was denied his right to representation, a back-
pay and reinstatement order was precluded by Sec 8(c) of the Act, if the
discharge was motivated by misconduct and not because the employee
insisted on his representational rights See also Montgomery Ward & Co v
NLRB, 664 F 2d 1095 (8th Cir 1981), General Motors Corp v NLRB,
674 F 2d 576 (6th Or 1982), and NLRB v Kahns & Co, 694 F 2d 1070
(6th Or 1982)
Also, in NLRB v Illinois Bell Telephone Co, 674 F 2d 618 (7th Cif
1982), it appears that the court disagreed with the Board regarding its
apportionment of the respective burdens of proof The court stated
In order to balance the need of the Company to maintain an
honest and efficient workforce, with the duty to enforce the policies
of the Act, we believe that Illinois Bell is entitled to show that its
discharge of Hatfield was not solely dependent upon evidence ob-
tained from her during the unlawful interview, but that that dis-
charge is and was supported by other independent evidence which
was available to the Company at the time of the discharge Upon
this record, we can not say that there is substantial evidence to sup-
port a finding that Hatfield's discharge stemmed solely from the
Company's unfair labor practice of forcing her to participate in an
interview without representation
union representative accompany him to the interview, a
request which was communicated to Langan on that date
by Union Agent Axelrod who asked for a postponement
due to the unavailability of any current union officials. In
fact, during a conversation between Axelrod and Langan
on March 10, the latter specifically stated that Lehman
was going to need a representative for the upcoming
interview.
I am also of the opinion that at the commencement of
the interview on March 11, the Company, as per its
policy and practice, advised Pierri (designated by the
Union to represent Lehman) that although he could be
present as a witness he would have to remain silent and
not participate. The fact that this instruction is not con-
tained in the notes made of this meeting by Langan does
not alter my conclusion in this respect as it appears that
this was, at the time, the Company's policy, was invari-
ably expressed at the outset of such interviews and was,
in a sense, a form or ritualized notice made preliminary
to these kinds of meetings. As such, a preliminary notice
of this nature would not likely be written down in a set
of notes which, on their face, deal with the substantive
discussion that took place. As I am of the opinion that
Pierri and Lehman were honest and credible witnesses, I
therefore conclude that such a notice was given to Pierri
at the outset of the interview. In addition, although
O'Toole and Langan testified that during the meeting
they told Pierri that they would make an exception to
his participation in the meeting, Langan's notes merely
reflect that Piern on one occasion was told that he
would be allowed some leeway. Apart from asking one
question, Pierri did not otherwise participate. Given the
initial notice, and the admitted company policy to pre-
clude union representatives from participating in investi-
gatory interviews, I do not believe that the Company's
statement that it would allow Pierri some "leeway" was
sufficient to lead him to reasonably conclude that his
participation would be unfettered. In fact, nem credibly
testified that, although he may have asked one or possi-
bly two questions, he essentially remained silent becaue
he was aware that it was the Company's policy to pre-
clude union representatives from participating in investi-
gatory interviews, and that this policy was reiterated at
the outset of the meeting.
In view of the above, it therefore is concluded that the
Respondent violated Section 8(a)(1) of the Act by telling
Lehman's union representative that he could not partici-
pate in the interview, such notification not being suffi-
ciently mitigated by the statement that he would be al-
lowed some leeway.
Notwithstanding my conclusion that the Respondent
violated Section 8(a)(1) of the Act, it seems to me that
the issue as to whether to order backpay in this case is
not free from doubt. Recognizing that some of the cir-
cuit courts (the Sixth, Seventh, and Eighth) have refused
to enforce such remedies in similar cases, I am neverthe-
less constrained to follow Board precedent." Yet even
7 Insurance Agents, 119 NLRB 768, 773 (1957) In that case the Board
stated
Continued
GREYHOUND LINES 1449
applying Board precedent to the facts herein is not un-
ambiguous.
On one hand, there is no dispute that Lehman was ad-
mittedly involved in misconduct which was reported to
the Company by witnesses prior to the interview It also
seems evident that, based on those reports, the Compa-
ny's representatives made at least a tentative decision to
impose some sort of discipline on Lehman. If I were con-
vinced that a final and binding decision to discharge
Lehman had been made prior to his interview, based
solely on the reported allegations of misconduct, I would
not recommend that he be made whole, notwithstanding
my conclusion that he was denied his rights of represen-
tation 18
On the other hand, I am not convinced by the evi-
dence that such a final or binding decision was made
before the interview began. Nor am I persuaded that the
information elicited from Lehman during the interview
did not play a part in the final decision to discharge him
As noted above, Langan conceded that had Lehman of-
fered a sufficient explanation for his conduct (by way of
offering mitigating circumstances) he might have been
persuaded to change his mind Also it is clear that the
discharge notice was not prepared until after the inter-
view had ended, thereby tending to support the conclu-
sion that no final decision had been made before its com-
mencement. Additionally, it is clear that, during the
interview itself, the Company did obtain vital informa-
tion to support a decision for discharge, namely, Leh-
man's admission of the acts alleged.' 9 While it cannot be
said with absolute certainty whether the Company
would have discharged Lehman if he had simply denied
the allegations, it may also be surmised that these admis-
sions were construed as being significant before making
the decision to discharge him Indeed, this is shown, at
least in some degree, by the Company's attempt to offer
into evidence, before the arbitrator, the notes of the
interview containing Lehman's admissions Thus, it may
be implied that by seeking and obtaining such admissions,
the Company recognized that a decision to discharge
Lehman would likely be upheld in any subsequent arbi-
tration proceeding By the same token, had Lehman
denied or adequately explained away the alleged miscon-
duct, the Company might noi have discharged him be-
cause of a perception that its chances of winning a subse-
quent arbitration case would be significantly reduced.
It has been the Board's consistent policy for itself to determine
whether to acquiesce in the contrary views of a circuit court of ap-
peals or whether, with due deference to the court's opinion, to
adhere to its previous holding until the Supreme Court of the United
States has ruled otherwise But it is not for a Trial Examiner to spec-
ulate as to what course the Board should follow where a circuit
court has expressed disagreement with its views On the contrary, it
remains the Trial Examiner's duty to apply established Board prece-
dent which the Board or the Supreme Court has not reversed Only
by such recognition of the legal authority of Board precedent will a
uniform and orderly administration of a national act, such as the Na-
tional Labor Relations Act, be achieved
See also Typographic Service, 238 NLRB 1565, 1568, 1573 fn 13 (1978),
Charles D Bonanno Linen Service, 229 NLRB 624 (1977)
18 See, e g, Coyne Cylinder Co. 251 NLRB 1503, 1504 (1980), ITT
Corp. 261 NLRB 229 (1982), Houston Coca-Cola, 265 NLRB 1488 (1982)
19 See, e g, Illinois Bell Telephone Co. 251 NLRB 932 (1980), South-
western Bell Telephone Co, 251 NLRB 612 (1980) But see Montgomery
Ward & Co. 644 F 2d 1095 (1981)
Recognizing that there exists a degree of uncertainty
as to whether the Company's decision to discharge
Lehman was based on information obtained during the
interview or whether that decision was based solely on
other independent evidence of his misconduct, it seems
to me, pursuant to the authority of Kraft Foods, that the
burden of persuasion is placed on the Respondent. As I
am not sufficiently persuaded that the Respondent has
met its burden in this respect, it is concluded that a
make-whole remedy is appropriate in this case.
CONCLUSIONS OF LAW
1. Greyhound Lines, Inc is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Local 1202, Amalgamated Transit Union, AFL-CIO
is a labor organization within the meaning of Section
2(5) of the Act
3. By instructing employee Harry Lehman's union rep-
resentative to remain silent during an investigatory inter-
view which Lehman was required to attend, the Re-
spondent unlawfully deprived Lehman of his right to his
union representative's counsel and assistance during the
interview, thereby interfering with his rights under Sec-
tion 7 of the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, it is recommended that it be
ordered to cease and desist therefrom, and that it take
certain affirmative action to effectuate the policies of the
Act.
As I have concluded above, that Respondent has not
met its burden of proof for establishing that the decision
to discharge Lehman was made prior to the investiga-
tory interview and that the decision was not based solely
on information received as part from the interview, it is
recommended that Lehman be made whole for the
period when he was unemployed 20 and that the Re-
spondent expunge and remove from its records and files
any and all reference to the interview with Lehman on
March 11, 1981. As to Lehman's loss of earnings, the
amount of backpay shall be computed in the manner set
forth in F. W Woolworth Co., 90 NLRB 289 (1950), with
interest computed in the manner set forth in Florida Steel
Corp., 231 NLRB 651 (1977). See generally Isis Plumbing
Co., 138 NLRB 716 (1962).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2'
ORDER
The Respondent, Greyhound Lines, Inc , Phoenix, Ar-
izona, its officers, agents, successors, and assigns, shall
20 As Lehman already has been reinstated pursuant to an arbitrator's
award, a reinstatement remedy is not required
21 If no exceptions are filed as provided by Sec 102 46 of the Board's
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
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from
(a) Depriving any employee of his right to union rep-
resentation at an investigatory interview which the em-
ployee reasonably believes might result in disciplinary
action, by requiring the union representative to remain
silent throughout the interview.
(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 affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole Harry Lehman for any loss of earn-
ings he may have suffered by reason of Respondent's dis-
charge of him on March 11, 1981, as set forth in the sec-
tion of this decision entitled "The Remedy."
(b) Expunge from its records and files the notes of the
interview conducted on March 11, 1981, with Harry
Lehman as well as any references to any disciplinary
action taken against him as a result of that interview.
(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 place of business copies of the attached
notice marked "Appendix." 2 ' Copies of the notice, on
forms provided by the Regional Director for Region 2,
after being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other materi-
al
(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.
21 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"