Illinois Bell Telephone Co.

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 932 (N.L.R.B. 1980)

932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Illinois Bell Telephone Company and Communica-
tions Workers of America, AFL-CIO, Local
No. 5008. Case 14-CA-11330
August 27, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On September 14, 1978, Administrative Law
Judge Walter H. Maloney, Jr., issued the attached
Decision in this proceeding. Thereafter, the Gener-
al Counsel and Respondent filed exceptions and
supporting briefs, and Respondent filed an answer-
ing brief to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided toaffirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge, as modified herein. 2
In March 1978, Respondent began investigating a
tip from authorities at the Vandalia Rehabilitation
Center that Bell operators at its Centralia, Illinois,
facility had improperly adjusted long-distance tele-
phone bills for Vandalia prisoners. The investiga-
tion, which centered on employees Cary Ann Hat-
field, Rebecca Wimberly, and Cathy Belt, was con-
ducted by Respondent's security representative,
James Lawshe. Lawshe interviewed both Hatfield
and Wimberly as part of his investigation, and
these investigatory interviews, as found by the Ad-
ministrative Law Judge, were ones which an em-
ployee could reasonably believe would result in
discipline. s
The Administrative Law Judge found that em-
ployee Hatfield requested a representative at the
I Respondent has in effect excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not
to overrule an administrative law, judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Prod-
ucts. Inc., 91 NLRB 544 11950). enfd 188 F.2d 362 (3d Cir. 1951). We
have carefully examined the record and find no basis for reversing his
findings.
2 We have adopted the Administrative Law Judge's cotnclusions with
respect Io Rebecca Wimberly in their entirety We therefore will set out
the pertinent facts only with respect to Cary5 Ann itatfield, hose dis-
charge is in issue
:' hus. while Respondent argues that it has not admitted tiat the in-
tcrviews were subject to the rights accorded employees under N I. RI
v J. Weingarten, In , 4211 I S 251 (1475), it coincedes that thle mt cliviews
wsere conductcd to iieigate improper adjustmncnts of hlIng-distanlec tlC-
phone bills. and that. on the basis (of' infrmation obhtaied thcrTill Re-
spoirldeit suspenlded alrd he discharged oine emploet (vs lIo llegedl
admitted complicity) andl took nl actliol agail anollther ernpl,,t cs hoI
denied iany wrlngdoitlig
251 NLRB No. 128
beginning of her interview. 4 The record shows that
she told Lawshe, "O.K., I'm going to go get a rep-
resentative," and he replied, "O.K., go get some-
one." Hatfield then left the office, and went to the
switchboard where she saw another employee,
Cheryl Simonton. Hatfield told a supervisor, Nei-
poetter, that she would like to have Simonton in
the meeting with her. She then returned to the
office and told Lawshe that Simonton was on her
way to the office. When Lawshe learned that Si-
monton was not currently a union steward, he told
Hatfield, "Well, I can't talk to you with a union
member but I will talk to you if you have your
union steward present or you can talk to me
alone." After a pause, the interview continued with
no representative present for Hatfield. s During the
interview, Hatfield admitted both orally and in
writing that she had adjusted six prisoner calls, and
had made five long-distance calls free of charge.
Respondent immediately suspended Hatfield, and a
few days later, on the basis of the information ob-
tained at the interview, Respondent discharged
Hatfield.6
The Administrative Law Judge concluded that,
under J. Weingarten, Inc., supra, Respondent violat-
ed Section 8(a)(1) of the Act when it denied em-
ployee Hatfield's request that a fellow employee sit
with her during a disciplinary interview. In so
holding, the Administrative Law Judge relied on
Glomac Plastics, Inc., in which the Board held that
an employee in a plant where there was effectively
no union representative at the time was entitled to
have a representative present at an investigatory in-
terview to the same extent that an employee in a
location where the union was recognized had that
right. 7 From that Decision, the Administrative
Law Judge here concluded that employees at a
unionized plant had a right to have the representa-
tive of their choice-whether an individual em-
ployee or a union-designated representative-since
employee Hatfield "can hardly be deemed to enjoy
4 Several days prior to the interview, Hatfield learned of Respondent's
investigation, and called her union steward to ask what she should do if
she were interviewed by Respondent The union steward instructed Hat-
field not to enter the interview alone, and that any union member could
serve as her representative at such an interview
' The record reveals that Hatfield worked a split shift from 9 a.m to 2
p.m and froim 5 to 10 pm Since the union steward worked the day shift
and the interview ith Hatfield was held on the night shift. the union
steward was not aailable at the time of the interview However, Lawshe
testified that he had no klnowledge as to whether or not the union ste-
vard was available at the time Iof the intersiew
I hus, Larry Spain, Respiondent's district manager, testified that he
discharged Hatfield on the basis of her erbal admission to Lawshe that
she hd adjcsted prisrier calls.
234 Nl.RB 13109 (1978) In Gi/o,,nac, the Hoard noted that the union
had been certified, but that, at the time olf the disciplinary interview, the
crnplioi hltad etigaged il ba rgaiinlg tactics W hich established that the
clilpll C! l Ill igtr rLogillc ed tile ulnirl as the enlpll ec,
'
represcnia-
11\1V
ILI.INOIS BELL. TELEPHONE COMPANY 933
some lesser right [than the employee in Glomac
whose union was effectively not able to represent
her] because she is represented by a union, unless
somehow the Union has waived this right by con-
tract and has insisted that its officers and no one
else be utilized at disciplinary interviews." The Ad-
ministrative Law Judge found no such restriction
by the Union in this case, and he further found that
Hatfield had not waived her Weingarten rights by
proceeding with the interview. He therefore found
the 8(a)(l) violation. As a remedy for the denial of
a representative, the Administrative Law Judge or-
dered Hatfield's reinstatement in order "to restore
the status quo ante." However, he did not pass on
the 8(a)(1) allegation that Hatfield had been dis-
charged because she insisted on union representa-
tion at the interview.
In its exceptions, Respondent argues, as a thresh-
old matter, that the finding of an 8(a)(1) violation
should be overturned because the complaint al-
leged that Respondent had violated Section 8(a)(l)
by denying an employee's request for union repre-
sentation, while the evidence showed that Re-
spondent had agreed to a union representative, but
would not agree to meet with Hatfield in the pres-
ence of another employee who had no official
union status but was only a union member. We find
no merit to this exception. Although the complaint
alleged that Respondent had violated Section
8(a)(l) because it denied Hatfield union representa-
tion, we are not precluded from finding a violation
under an alternative theory. As we stated in C & E
Stores, Inc., C & E Supervalue Division, 221 NLRB
1321, fn. 3 (1976):
It is well established that where, as here, the
facts underlying the violation are fully devel-
oped at the hearing, an unfair labor practice
finding can be based on the issues litigated as
well as those specifically alleged in the com-
plaint.8
Here, all the circumstances surrounding the Hat-
field interview, including the facts relating to Si-
monton's nonofficial union status, were fully litigat-
ed at the hearing, and of necessity Respondent was
aware of the General Counsel's theory that Simon-
ton's lack of official status was no bar to the find-
ing of a violation. Accordingly, Respondent cannot
claim prejudice by the Administrative Law Judge's
finding.
Apart from its procedural concern, Respondent
also excepts to the Administrative Law Judge's
substantive finding that Respondent violated Sec-
' See also for this result Joint Industry Board of the Electrical Industry
and Pension Committee, Joint Industry Board of the Electrical Industry, and
Trustees of the Pension Hospitalization and Benefit Plan of the Electrical In-
dustry. as named in Appendix .4. 238 NLRB 1398, fn. 8 (1978).
tion 8(a)(1) of the Act by refusing Hatfield's re-
quest that an employee, with no official union
status, be present during the interview with
Lawshe. Specifically, Respondent argues that
union-represented employees have agreed to give
up individual rights vis-a-vis their employer in ex-
change for the collective strength of being repre-
sented by a union.9 Accordingly, where a union
represents them, the employees must rely on the
union for representation at Weingarten interviews,
at least where the employer so insists. We agree
with Respondent that, in certain situations, there is
a difference between the rights of represented and
nonrepresented employees to interact with the em-
ployer as individuals. Certainly an employee
cannot act in derogation of the union majority rep-
resentative.10 That does not mean, however, that
an employee may not deal with the employer as an
individual in certain situations. This case presents a
situation in which individual interaction is permissi-
ble, for there is nothing in the contract which re-
quires the presence of a union representative at an
investigatory interview, nor was there an oral un-
derstanding between the Union and Respondent
which established a procedure for representation at
investigatory interviews. Moreover, it appears
from the record that a union representative was not
present at the Centralia facility when Hatfield re-
quested a representative. Thus, the issue before us
is a narrow one: Whether Hatfield, under the facts
presented here, was entitled to have an employee
who had no official union status present with her
at the interview. We conclude that, under Weingar-
ten, she was.
We start from the premises that the right to a
representative is one grounded in Section 7 of the
Act without reference to whether the employees
have a majority bargaining representative. Thus, in
Weingarten, the Court found that "the right inheres
in §7's guarantee of the right of employees to act in
concert for mutual aid and protection,"' 2 and, as
we found in Anchortank,'3 "[t]he Court and the
Board [in Weingarten] placed the emphasis upon
the employer's right to act concertedly for protec-
tion in the face of a threat to job security, and not
upon the right to be represented by a duly desig-
nated collective-bargaining representative." Indeed,
in Anchortank, the Board stated that the representa-
9 See, e.g., Emporium Capwell Co. v. Western Addition Community Or-
ganization, et a., 420 U.S. 50 (1975).
10 Id. at 62-65.
1 Secs 3.07 and 3 10 of the collective-bargaining agreement do pro-
vide, however, for the presence of union representation at all stages of
the grievance procedure, and that the Union and Respondent will keep
each other informed as to who their designated representative is.
12 420 US at 256, quoted in Anchortank, Inc. 239 NLRB 430 (1978)
l 31bid
934 DECISIONS OF NATIONAL. LABOR RELATIONS BO)ARD
tive's function at an investigatory interview was
not that of a traditional bargaining representative,
and, therefore, a fellow employee who had no offi-
cial union status could serve as a representative as
well as an official union representative. Specifical-
ly, the Board noted there:
Thus, the union representative is not permitted
to use the powers conferred upon the union by
its designation as collective-bargaining agent,
and, in essence, may do no more during the
course of the interview than could a fellow
employee. 4
While we recognize that there may be times when
an individual's Section 7 interests must yield to the
collective decision of his fellow employees, as de-
termined by the majority bargaining representative,
the instant record presents no conflict between the
employees' Section 7 right to a representative and
the Union's status as the employees' exclusive bar-
gaining representative, since: (1) no officially desig-
nated union representative was available at the time
of the interview; (2) Hatfield's union steward had
instructed her several days before the interview
that, if called into an investigatory interview, Hat-
field could select any union member as her union
representative; (3) after Lawshe stated that he
would talk to Hatfield with her union steward but
no one else, he made no attempt to locate a ste-
ward, nor did he offer to delay the interview until
a steward was available; and (4) the parties had not
negotiated a conflicting procedure for investigatory
interviews. Accordingly, we hold on the basis of
these facts that Hatfield, upon request, had the
right to the presence of a fellow employee at her
interview, even though that employee had no offi-
cial union status.'5
As noted previously herein, the Administrative
Law Judge did not pass on the 8(a)(1) allegation
that Hatfield was discharged because she requested
representation at the investigatory interview. He
found it unnecessary to pass on the allegation,
since, in finding the Weingarten violation, he or-
dered the same make-whole remedy which he
would have ordered if the discharge itself were
found to be unlawful. In our view, the Administra-
tive Law Judge should not have refused to pass on
the independent 8(a)(1) allegation simply because
the remedy for it would be the same as the remedy
for the violation he found. Our review of the evi-
dence, however, leads us to conclude that the Gen-
eral Counsel has not shown that Hatfield was dis-
charged because she requested a representative.
Rather, the evidence shows that her discharge was
" Id. at 430-431.
to See also Crown Zellerbach. Inc.. Flexible Packaging Division, 239
NLRB 1124 (1978).
motivated by Respondent's belief that she had im-
properly adjusted telephone calls. Accordingly, the
complaint with respect to this allegation is dis-
missed.
Finally, Respondent and the General Counsel
have both excepted to the Administrative Law
Judge's recommended remedy wherein the Admin-
istrative Law Judge ordered backpay and reinstate-
ment for Hatfield. The General Counsel urges that
the Administrative Law Judge should also have or-
dered Respondent to strike and remove from its re-
cords and files the statement given by Hatfield to
Lawshe as well as all references to any disciplinary
action arising out of the events of March 1, 1978.
Respondent, on the other hand, argues that rein-
statement and backpay are improper, since there is
no finding that Hatfield was discharged for re-
questing representation, or even that the discharge
violated Section 8(a)(l) of the Act. We therefore
reach the question of the proper remedy for Re-
spondent's unlawful refusal of Hatfield's request for
a representative at an investigatory interview.
We think the answer to the question is a simple
one. The Board has authority to restore the status
quo ante where restoration is necessary to "undo
the effects of violations of the Act,"' 6 and where
the remedy is "well designed to promote the poli-
cies of the Act."' 7 Here, Respondent's unlawful in-
terview of Hatfield resulted in a confession which
Respondent then used as the basis for discharging
Hatfield. Accordingly, we think it appropriate, in
order to rectify the harm which resulted from the
unlawful interview, to grant the remedy of rein-
statement and backpay. In so doing, we hold that,
where the General Counsel shows that an unlawful
investigatory interview has occurred and that the
employee was disciplined or discharged for con-
duct which was the subject of the interview, the
burden then shifts to the employer to show that its
decision to discipline or discharge was not based
on information which it obtained at the inter-
view. 8
In the instant case, the General Counsel showed
that an unlawful interview had occurred, and that
Hatfield was discharged for conduct which was the
subject of the interview. Respondent in fact ad-
mitted that it based its decision to discharge Hat-
field on her oral admissions at the interview with
Lawshe. Accordingly, it failed to meet its burden
6 Fibreboard Paper Products Corp. vs NL.R.R.. 379 US. 203, 216
(1964), quoting ,NL.R.B. v Seven-Up Bottling Company of Miami. Inc..
344 U S. 344, 346 (1953)
"' Fibreboard Corp.. 379 US. at 216.
' In Fibreboard. the respondent also had the burden of establishing
that the remedy was unwarranted. Ibid. Member Jenkins regards this
statement as too board, but otherwise concurs in the decision herein See
his dissent in Kraft Foods. Inc., 251 NLRB 598 (1980).
ILLINOIS BELL TELEPHONE COMPANY 935
of showing that the decision to discharge was not
based upon information obtained at the unlawful in-
terview.' 9 We therefore find that an order of rein-
statement and backpay is the proper remedy in this
proceeding. 20 Furthermore, we agree with the
General Counsel that, as part of the make-whole
remedy, Hatfield's statement at the interview, as
well as any references to any disciplinary action
arising out of the events of March 1, 1978, should
be expunged from Respondent's files and records.
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, Illinois Bell
Telephone Company, Centralia, Illinois, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Insert the following as paragraph l(a) and re-
letter the subsequent paragraphs accordingly:
"(a) Requiring that employees participate in in-
terviews or meetings where the employees have
reasonable grounds to believe that the matters to
be discussed may result in their being disciplined
and where representation at those interviews or
meetings has been refused."
2. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs accordingly:
"(b) Expunge and remove from its records and
files any and all references to the incident on
March 1, 1978, in which Cary Ann Hartfield was
wrongfully denied a representative, including any
discharge notice or reference to the discharge."
3. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER JENKINS, CONCURRING:
I join the majority in ordering that Respondent
reinstate Cary Ann Hatfield with backpay and ex-
punge any records dealing with her discharge. I
would, however, grant the requisite make-whole
remedy for a Weingarten violation where the Gen-
eral Counsel shows that an unlawful interview has
occurred, and that the employee was disciplined or
discharged for conduct which was the subject of
19 Because the circumstances of the interview and discharge were fully
litigated, and because Respondent did come forward with the evidence as
to the basis for its decision, we find it unnecessary to reopen and remand
this case to the Administrative Law Judge for a hearing on this issue.
a' That does not mean, however, that, if Hatfield accepts reinstate-
ment, Respondent is forever foreclosed from discharging her for improp-
erly adjusting the prisoners' calls It cannot, however, do so on the basis
of any information obtained from the interview of March 1. This proce-
dure remedies the unfair labor practice. while preserving Respondent's
right to discipline and discharge its employees. so long as its actions do
not contravene the Act
the unlawful interview. Since such was the case
here respecting Hatfield, the remedy provided in
this Decision is the appropriate one.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAIl LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT require any employee to take
part in an interview or meeting where the em-
ployee has reasonable grounds to believe that
the matters to be discussed may result in his or
her being the subject of disciplinary action and
where we have refused to permit him or her
to be represented at such meeting by a repre-
sentative.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL offer Cary Ann Hatfield immedi-
ate and full reinstatement to her former job or,
if that job no longer exists, to a substantially
equivalent job, without prejudice to her se-
niority or any other rights or privileges previ-
ously enjoyed and WE WILL make her whole
for any loss of pay or benefits which she may
have suffered by reason of the discrimination
practiced against her, with interest.
WE WILL expunge and remove from our re-
cords and files any and all references to the in-
cident on March 1, 1978, in which Cary Ann
Hatfield was wrongfully denied representation,
including any discharge notice or references to
discharge.
ILLINOIS BELL TELEPHONE COMPANY
DECISION
FINDINGS OF FACT
STATEMENT OF THE CASE
WALTER H. MALONEY, JR., Administrative Law
Judge: This case came on for hearing before me at St.
Louis, Missouri, on June 23, 1978, upon an unfair labor
practice complaint,' issued by the Regional Director of
the Board's Region 14, which alleges that the Respond-
The principal docket entries in this case are as follows
Charge filed herein on April 7, 1978, by Communications Workers of
America. AFL-CIO, Local 5008 (herein called the Union); complaint
issued by Regional Director, Region 14. on May 8. 1978; Respondent"s
answer filed June 9, 1978; hearing held in St. Louis, Missouri on June 23,
1978: briefs filed by the General Counsel and the Respondent with me on
or before Juls 24. 1978
A . .
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent Illinois Bell Telephone Company 2 violated Section
8(a)(1) and (3) of the Act. More particularly, the com-
plaint alleges that the Respondent unlawfully denied
union representation to two of its employees during dis-
ciplinary interviews, and that it suspended and then dis-
charged Cary Hatfield because she insisted on union rep-
resentation at a disciplinary interview. The Respondent
contends that both employees waived their rights to rep-
resentation at the interview in question and that Miss
Hatfield was discharged for cause. Upon these conten-
tions, the issues herein were drawn.
I. THE UNFAIR LABOR PRACTICES ALLEGED
The events in this case took place at the Respondent's
Centralia, Illinois, telephone exchange. The switchboard
operators and other employees at this location are repre-
sented by the Union herein and are covered by a collec-
tive-bargaining agreement, effective August 7, 1977,
which expires on August 9, 1980. The employees in-
volved herein, Cary Ann Hatfield and Rebecca Wimber-
ly, are or were long-distance toll operators at the Centra-
lia exchange.
In March 1978, the Respondent, through its security
representative, James Lawshe, initiated an investigation
of suspected dishonesty in the computation of long-dis-
tance telephone charges and the use of long-distance
telephone facilities at the Centralia exchange. The inves-
tigation focused on Hatfield, Wimberly, and Cathy Belt,
all of whom were interrogated by Lawshe at interviews
which the Respondent admits were disciplinary in char-
acter. Hatfield, a 5-year employee at the Centralia ex-
change, first learned that she was the subject of a compa-
ny investigation on February 28. At Wimberly's request,
she came to Wimberly's house and there, in the presence
of Belt, was told of a telephone conversation which
Wimberly had with William Fischer, an inmate of the
nearby Vandalia Rehabilitation Center, a correctional in-
stitution.
It appears that prisoners of the Vandalia Center are
permitted to place outside calls from a phone located in
the recreation area of the Center. However, these calls
must be reverse-charge toll calls which are paid for by
the recipient of the call. Wimberly told Hatfield and Belt
that Fischer had informed her in a hurried call that he
and two other inmates, Robert Allen (known familiarly
as Payday) and Rodney Feisel, were being sent to soli-
tary confinement. However, he wanted to let her know
that a Bell Telephone investigator from Chicago was
coming to Centralia to talk to the three operators and
that Cathy Belt and Cary Hatfield might lose their jobs.
Hatfield immediately phoned her union steward, Jan
2 Respondent admits, and I find, that it is an Illinois corporation which
maintains a place of business at Centralia, Illinois, where it operates an
office and telephone exchange. Respondent is, and at all times material
hereto has been, engaged in providing telephone communication and re-
lated services as a regulated public utility. In the course and conduct of
this business, it derived gross revenues in calendar year 1977 in excess of
$100,000. or which sum more than 50,000 was derived by providing tele-
phone service directly between points and places in the State of Illinois
to points and places located outside the State of Illinois. Respondent is an
employer engaged in commerce within the meaning of Sec. 2(2), (6), and
(7) of the Act. The Union is a labor organization within the meaning of
Sec. 2(5) of the Act.
Kirwan, and relayed this information. Kirwan reportedly
told Hatfield not to go into any investigative interview
alone and also told her that any union member could
represent her.
Hatfield works a split shift. During the evening por-
tion of her March I shift, she was asked by her supervi-
sor, Nancy Neipoetter, to leave the switchboard and
report to the chief operator's office, where Lawshe was
waiting to speak to her. During the next 2 hours or
more, Lawshe interviewed Hatfield alone in the office.
As might be expected, their versions of the interview
differ in some particulars.
Both agree that Lawshe began by identifying himself
and by telling Hatfield that he was investigating the
manner in which toll calls were being placed by opera-
tors at the Centralia exchange for inmates of the Vanda-
lia Rehabilitation Center. He specifically asked her if she
knew if any operators were making adjustments 3 on toll
charges for outgoing calls placed by Vandalia inmates.
Hatfield said that she had made no such adjustments and
knew of none which were being made by other opera-
tors. He also asked her if she had been making free calls
for Vandalia inmates and she denied it.
Both agree that, at some point in the 2-hour interview,
Hatfield asked for union representation. She and Lawshe
disagree on when this request occurred. Hatfield had
been told a few days before that she had a right to union
representation and had been further advised by her shop
steward not to go into the meeting without someone
with her. I think that Hatfield's version, namely, that she
requested representation at or near the outset of the
meeting, is more believable, and I credit it over
Lawshe's version that she did not request representation
until after she had made a number of damaging verbal
admissions which he was proposing to put in writing.
Regardless of the timing of her request, Lawshe and
Hatfield agree that Hatfield not only requested union
representation but also specifically requested the pres-
ence and assistance of Cheryl Simonton, an employee
who at one time had been an assistant shop steward at
the Centralia exchange. Hatfield was allowed to leave
the room and to seek out Simonton. She returned and
told Lawshe that Simonton was on her way to the inter-
view. Lawshe learned that Simonton was not currently a
union steward and told Hatfield that he could not talk
with her with merely another union member present. He
said he would talk with her in the presence of a steward
or would give her the option of talking to him alone. He
did not say that she had the option of not talking with
him at all or of postponing the interview until a union
steward could be found. 4
After receiving from Hatfield initial denials of any
wrongdoing, Lawshe began to talk to her concerning
3 An example of such an adjustment would be making a 3-minute entry
on a toll stub for a call which in fact lasted 10 minutes.
4 The record indicates that there is no contractual requirement that a
shop steward be present at the exchange whenever union members are
working. In response to a question by me, Lawshe said he did not know
if a formally designated union representative was in fact on the premises
at the time of the Hatfield interview and could not state the identity of
anyone present in the building at the time who could properly act, in his
view, as Hatfield's representative
ILLINOIS BEI.I. TELEPHONE COMPANY 937
herself and her personal life. He asked her how long she
had been with the Company, what her job duties were,
and where she lived. He asked her if there was a special
way of identifying calls emanating from the Vandalia
Rehabilitation Center, and she informed him that a spe-
cial light came on at the switchboard to indicate such
calls. Lawshe asked her if she associated with any of the
prison inmates and specifically if she was acquainted
with an inmate known as Payday. Hatfield stated that
she knew Payday, that she had dated him on occasion,
had visited him at the prison, and that she expected to
see him after he was released. Lawshe asked her if she
intended to marry Payday, if she was writing to any of
the Vandalia prisoners, and if she knew inmates William
Fischer and Rodney Feisel. Hatfield said that she knew
them and had been writing to Feisel.
Lawshe then asked her if she had mailed her work
schedule to any of the prisoners. She denied doing so.
While she maintained during the initial part of her inter-
view that she did not place free calls or adjust calls for
any prisoners, Lawshe persisted with questions such as
"How long has this been going on?" with reference to
her relationship with the prisoners in question. He told
her that he had witnesses to the fact that she had been
furnishing prisoners her work schedule.
After repeated questioning, Hatfield then asked
Lawshe what would happen if she admitted adjusting
toll calls. He stated that he would turn the information
into his Chicago headquarters and they would make a
decision. She asked what he would do if she did not
admit adjusting calls. I credit her statement and discredit
Lawshe's denial that he then said he would prosecute,
adding that he did not want to be hard on her and vol-
unteering "you wouldn't go to jail. You wouldn't be
wearing stripes."
Lawshe suggested that Payday had pressured her into
making toll adjustments for outgoing calls from the
Center. At this point, Hatfield told Lawshe that he had
not done so and that she had adjusted five or six calls for
Vandalia prisoners. She also said she had called a girl
friend, Daphna Sprehe, in California free of charge. 5
Lawshe asked her to make a written statement to the
effect that she had adjusted toll charges and made free
long-distance calls. He went back over these aspects of
the interview, wrote out a statement in longhand, and
gave it to her to sign. She signed it. The written state-
ment, dated March 1, contained admissions that in the
past 2 months she had handled an estimated six calls
from the Vandalia Center for which she had adjusted the
total timing on the bills. It also contained an estimate
that she had made about five calls to Daphna Sprehe in
Pomona, California, free of charge. Lawshe took the
statement and showed it immediately to Neipoetter who,
after reading it, informed Hatfield that she was being sus-
pended. Hatfield left the premises.
On the following morning, Lawshe interviewed Wim-
berly in the chief operator's office. After Lawshe identi-
fied himself and the nature of his business, Wimberly
asked him: "Should I have someone in here with me,
someone from the union?" Lawshe's reply was "No, it is
: Sprche a , r frmrln ;an operator al t he Cctralia Fch;ange
not necessary as long as you are honest with me,"
whereupon he immediately proceeded to conduct the in-
terview. Among the statements made by Lawshe to
Wimberly in the course of their 2-hour interview was
"You know you don't have to take the rap for Cary."
He also asked her about her association with various
prisoners at Vandalia. When she acknowledged her ac-
quaintance with some of them, he volunteered the
remark that she would be judged by the company she
kept. He asked her if she would take a polygraph exami-
nation and she agreed to do so. Beyond these and a few
other incidental remarks, the substance of this interview
does not appear in the record. Apparently no adverse
action was taken against Wimberly. After completing his
interview with Wimberly, Lawshe then interviewed Belt.
The substance of this interview also does not appear in
the record, except for Lawshe's testimony that Belt
sought and obtained union representation during her in-
terview. There is no suggestion in the record that the
Respondent took any disciplinary action against Belt.
District Manager Larry Spain testified that he re-
viewed the Hatfield case and, on March 7, informed Nei-
poetter that she should discharge Hatfield. He stated that
he did not review the written statement which Lawshe
took but based his decision on other evidence, stating
that his sole reason for discharging her was dishonesty
on her part in adjusting toll calls to California, I inquired
of Lawshe and of the Respondent's counsel if they had
any independent evidence of the time, date, and destina-
tion of the toll calls which Hatfield wrongfully made or
adjusted. They responded in the negative. Hatfield
denied that she had written any letters to Vandalia pris-
oners informing them of her duty hours or that she had
made free calls to California without getting caught.
Lawshe said he saw such a letter, which had been pro-
vided to him by prison authorities, but the letter was not
produced at the hearing nor was the failure to produce it
explained.
On March 9, Neipoetter called Hatfield to the ex-
change. A brief interview was held in the presence of
Shop Steward Kirwan. Neipoetter told them that she
was making the interview short and to the point, where-
upon she discharged Hatfield and told her to turn in her
identification card and her locker key.
II. ANALYSIS AND CONCLUSIONS
The Supreme Court held in the Weingarten and Quality
Manufacturing cases6 that the right of an employee to
union representation at a disciplinary interview is pro-
tected by Section 7 of the Act. Of pertinence to this case
are certain qualifications announced by the Court,
namely, that the right must be invoked in a timely fash-
ion, may be waived, and exists only in the case of disci-
plinary as distinguished from investigatory interviews. In
deciding these two controlling cases, the Supreme Court
cleared up a dispute which can be found in prior Board
cases over whether the right of representation at such in-
terviews is grounded in statute or whether it exists only
VL R B. v J. Weingarten Inc.. 420 L.S 251 11975). nternational
LadwC Garment WHirker' nion Q )ualitv Manufacturing Compan. 420
lS 276 (9q7)
938 DECISIONS OF NATIONAL LABOR RELATIONS 3()ARD
when it becomes a contractual undertaking between an
employer and a union in a represented bargaining unit.
The Supreme Court adopted the former view.
At the outset of this discussion, it should be noted that
the Respondent conceded that both interviews here in
question were disciplinary in character. Section 7 of the
Act makes no mention of union representation as a pre-
requisite to its coverage. The scope of its protection ex-
tends to unrepresented employees as well as to union
members. Since the source of the right of representation
was held by the Supreme Court to be statutory, not con-
tractual, the Board thereafter took the logical, if not ines-
capable, step in Glomnac Plastics, Inc., 234 NLRB 1309
(1978), by holding that an unrepresented employee in a
nonunion setting was entitled to have another employee
represent him at a disciplinary interview under the same
circumstances that a union-represented employee is enti-
tled to invoke this protection.
To apply the thrust of the Glomac case to the Re-
spondent's major contention herein, if Hatfield had been
working in a nonunion plant and had made a timely re-
quest to be represented by Simonton at her interview
with Lawshe, it would be a violation of Section 8(a)(l)
for the Respondent to have prevented Simonton from
rendering the requested assistance. Hatfield can hardly
be deemed to enjoy some lesser right because she is rep-
resented by a union, unless somehow the Union has
waived this right by contract and has insisted that its of-
ficers and no one else be utilized at disciplinary inter-
views. The Union has made no such contention in this
case. Its shop steward informed Hatfield some days
before her interview with Lawshe that any union
member could serve as her representative. The contract
between the parties contains only one reference to the
entire question of representation at disciplinary inter-
views. Section 27.04 provides:
At any meeting between a representative of the
Company and an employee in which discipline (in-
cluding warnings which are to be recorded in the
personnel file, suspension, demotion, or discharge
for cause) is to be announced, a Union representa-
tive may be present if the employee so requests.
There is nothing at all in the paragraph which remote-
ly trenches upon the statutory right of an employee at
the Centralia bargaining unit to be represented at a disci-
plinary interview by any other employee. Thus, when
Lawshe denied Hatfield the right to be represented by
Simonton, he was denying her the right to be assisted by
a representative of her choice and was, without the
slightest warrant in statute or contract, arrogating to
himself a prerogative which was not his but which
served his purpose of pursuing an investigation with a
minimum of interference. At the moment Lawshe told
Hatfield that she could not be represented by Simonton,
the Respondent violated Section 8(a)(1) of the Act. Any-
thing which occurred thereafter compounded rather than
modified or remedied this violation.
Respondent claims that Hatfield and Wimberly both
waived their right of union representation by consenting,
in each case, to go ahead with the interviews. In the case
of Hatfield, the contention is particularly weak, inasmuch
as the Respondent must perforce contend that an em-
ployee had freely waived a right which the Respondent
had already illegally invaded. In any event, a claim of
waiver may not lightly be invoked and, when such a
claim is made, the burden is upon the one asserting it to
establish that a waiver has in fact occurred. It has been
well established, in cases arising out of a host of different
situations, that the waiver of a right protected by Section
7 of the Act must be clear and unequivocal. Sometimes
the, Board uses the expression "clear and unambiguous."
Gary Hobart Water Corporation, 189 NLRB 742 (1971);
Nordstrom. Inc., 229 NLRB 601 (1977); Texaco Corpora-
tion, 189 NLRB 343 (1971); Television Wisconsin, Inc., 224
NLRB 722 (1976); Sheet Metal Workers International As-
sociation, Local Union No. 29 (Metal Fab Inc.), 222
NLRB 1156 (1976); Laconia Shoe Co., Inc., 215 NLRB
573 (1974). The requirement of a clear and unambiguous
waiver has been held to apply specifically to the right of
representation at disciplinary interviews. Southwestern
Bell Telephone Company, 227 NLRB 1223 (1977). No
such waiver occurred on March I at the Hatfield inter-
view.
Under the facts in the record, when Hatfield's selec-
tion of a representative was refused, she was not in-
formed that she might terminate the interview or sus-
pend it until a union officer could be present. She was
detained alone in the locus of managerial authority, pep-
pered repeatedly with hostile questions, and threatened
with criminal prosecution. The interrogator pried into
the details of her personal life and her personal plans,
hoping to find a pressure point which would give forth a
damaging admission. Such elements in this interview do
not support a contention of waiver. They smack of op-
pression in the face of a studied reluctance to proceed.
Accordingly, there is utterly no foundation for the Re-
spondent's argument that Hatfield freely and voluntarily
waived her right to representation by continuing to
answer the questions which Lawshe posed to her.
Lawshe was not quite so heavy-handed in dealing with
Wimberly, so the question of a timely request for repre-
sentation and a waiver of this right is much closer in her
case. Both parties to this interview acknowledge that, at
the outset of the conversation, Wimberly asked Lawshe
if she should have someone present from the Union. I
take this remark to be both a request for advice and the
expression of a desire for union assistance. Her statement
is not far removed from the statement made by the inter-
rogated employee in Southwestern Bell, supra, a statement
which the Board construed as a request for union repre-
sentation ("I would like to have someone there to ex-
plain to me what was happening"). Having concluded
that the statement by Wimberly was a timely request for
representation, I must also conclude that Lawshe was
not at liberty to proceed until union representation was
provided, or unless other and further statements or
events evidenced a clear and unambiguous waiver on
Wimberly's part to go it alone.
The Board said in Southwestern Bell that "Weingarten
does not require that having made his request, an em-
ployee must remain adamant in the face of predictions of
ILI.NOIS BELL TELEPHONE COMPANY 93(
dire ultimate consequences." In the WVimberly interview,
unlike the Hatfield interview, there were no predictions
by Lawshe of dire ultimate consequences. However,
Lawshe's remark that Wimberly did not need a repre-
sentative if she was going to be honest with him carries
the clear message that an adamant insistence on represen-
tation on her part would be considered tantamount to
dishonesty by an employee who was being called upon
to respond to an investigation which was being undertak-
en to probe into suspected dishonesty. The clear import
of Lawshe's words on this occasion is that the only way
that Wimberly could vindicate her honesty in the eyes of
her employer was to proceed without union representa-
tion. Her election to proceed under such circumstances
was not a free and unfettered waiver of a statutory right
but merely capitulation to a more subtle form of pressure
than was used in the Hatfield case. Accordingly, I con-
clude that, by conducting an interview of Wimberly in
the absence of union representation when such represen-
tation was requested, the Respondent herein violated
Section 8(a)(l) of the Act.
Section 6 of the complaint alleges that the Respondent
discharged Cary Hatfield because she insisted on union
representation at her disciplinary interview. The Re-
spondent says that its sole and exclusive reason for dis-
charging her was dishonesty in adjusting toll calls for
Vandalia prisoners and making unauthorized long-dis-
tance calls to a girl friend in California. In support of its
contention, the Respondent introduced the testimony of
its district manager, Larry Spain, who traced his thought
processes in arriving at a decision to let Hatfield go.
While this testimony is relevant to the complaint as
drafted, both the allegation in paragraph 6 and the testi-
mony directed to it are surplusage to the findings and
remedy recommended in this case. For reasons herein-
after discussed, such matters need not be addressed in
this Decision in order to provide the General Counsel
with the remedy which he has requested in this case.7
Upon the foregoing findings of fact, and upon the
entire record herein considered as a whole, I make the
following:
CONCL USIONS OF LAW
1. Illinois Bell Telephone Company is an employer en-
gaged in commerce and in an industry affecting com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Communications Workers of America, AFL-CIO,
Local 5008, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By refusing to permit Cary Hatfield and Rebecca
Wimberly to have representation by employees of their
selection at disciplinary interviews, the Respondent
herein violated Section 8(a)(1) of the Act.
7 Throughout the hearing, the General Counsel repeatedly objected to
evidence being offered concerning whether Halfield really was guilty of
misconduct in the performance of her duties No finding is made herein
as to hether or not she actually adjusted toll calls and made unauthor-
ized long-distance calls from her suitchboard HowAeser, sincr the moll-
vatlion for her discharge Was placed in issue h paragraph 6 of the com-
plain, an) eidence hearing oln he Respondent's real reason fr lettlng
her go is certainl)y material to the issue 'hich was framed '.henl h Re
spondent denied paragraph 6
4. The unfair labor practices found herein affect com-
merce among the several States within the meaning of
Section 2(6) of the Act.
THI RMHil)y,
Having found that the Respondent has committed cer-
tain unfair labor practices, will recommend that it be
ordered to cease and desist therefrom and to take other
affirmative actions designed to effectuate the purposes
and policies of the Act. In the case of Hatfield, the
record reflects that she was discharged shortly after her
disciplinary interview ostensibly for reasons which were
related to the matter which was the subject of the un-
lawfully conducted interview. Fashioning a remedy for
the unfair labor practice found I must take this fact into
consideration. In recommending a remedial order to the
Board, I deem it immaterial whether the information in
Spain's possession when he decided to fire Hatfield in-
cluded either written or oral admissions derived from
Lawshe's interrogation of the employees. As far as I am
concerned, whether or not Hatfield is really guilty of the
misconduct alleged or whether her denials under oath on
the record in this case are entitled to ultimate acceptance
is immaterial to the remedy being recommended.
The purpose of a Board remedy is to restore the status
quo ante. To put it in simpler terms, our purpose is to
turn the clock back to the point in time when the unfair
labor practice occurred and to require the parties to go
forward from that point, insofar as it is possible, as if the
unfair labor practice had never occurred. In regard to
Hatfield, the unfair labor practice principally at issue in
this case occurred on the night of March I at the
moment when she was prevented from having the assist-
ance of Simonton as her representative. At that moment,
she was an employee of the Respondent in good stand-
ing, except that she was the subject of an investigation
for job-related misconduct. Restoration of the status quo
necessarily means restoring her to this status and paying
her for wages and benefits lost in the interim. Here, as in
conventional discharge cases, such backpay should be
computed in accordance with the Woolworth formula,"
with interest thereon taxed in accordance with the ad-
justed prime rate used by the U.S. Internal Revenue
Service for computing interest on tax payments. Florida
Steel Corporation. 231 NLRB 651 (1977); i1si Plumbing &
Heaing Co., 138 NLRB 716 (1962).
What is to become of the statement taken from Hat-
field by Lawshe and where the Respondent can go from
here need not be addressed in this Decision. Whether
statements taken in violation of an employee's statutory
rights become "fruit of a poisonous tree," to borrow a
phrase from constitutional law relating to coerced con-
fessions and illegal searches and seizures,9 or whether an
employer may take a statement in violation of Section 7
of the Act and use its contents or information derived
therefrom to effectuate a lawful discharge is a matter
' W1 H1r4iliorth C-(½npuanr. 9(1 NLRtB 284 (l950)
' See, for example, hfopt I tah, 11) S 574 (ISS4): H,A , I' ed
Struts, 232 U S 8I (11914). In r .SVrthorln- 1 l.umhr ( renpont 21 ' S
385 1q20). Escobchdo n Slatc i/ l/tlh ,. 17X t S 478 6194. ,thranda.
.4rizona. 3X4 1 S 436h (1966)
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which can be addressed by the Board, a court, or an ar-
bitrator at a later time if the Respondent herein decides
to press this matter further. The findings made above,
limited though they may be, are sufficient to provide the
General Counsel with the remedy he is now seeking.
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record herein considered as a
whole, and pursuant to Section 10(c) of the Act, I make
the following recommended:
ORDER l °
The Respondent, Illinois Bell Telephone Company,
Centralia, Illinois, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Conducting disciplinary interviews of employment
in the absence of an employee representative when the
employees under investigation have requested to be rep-
resented by other employees.
(b) In any like or related manner interfering with, co-
ercing, or restraining employees in the exercise of rights
guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes and policies of the Act:
(a) Offer to Cary Ann Hatfield full and immediate re-
instatement to her former position or, in the event her
'0 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
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
former position no longer exists, to substantially equiva-
lent employment, without prejudice to other rights
which she formerly enjoyed, and make her whole for
any loss of pay or benefits which she has suffered by
reason of the unfair labor practice found herein, in the
manner described above in the section entitled "The
Remedy."
(c) Post at its Centralia, Illinois, exchange copies of
the attached notice marked "Appendix."'' Copies of said
notice, provided by the Regional Director for Region 14,
shall be duly signed by the Respondent's shall be posted
by the Respondent immediately upon receipt thereof,
and shall be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken to by the Respondent to
insure that such notices are not altered, defaced, or cov-
ered by any other material.
(b) 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 re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order, what
steps the Respondent taken to comply herewith.
I In the event that this Order is enforced by a Judgment of a United
Slates Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."