New England Telephone Co.

National Labor Relations Board - Board Decisions

Sep 30, 1992

309 N.L.R.B. 196 (N.L.R.B. 1992)

196
309 NLRB No. 20
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We shall modify the judge’s recommended Order to correct cer-
tain inadvertent errors.
New England Telephone Company and Local 2322,
International Brotherhood of Electrical Work-
ers, AFL–CIO. Case 1–CA–27520
September 30, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On April 8, 1991, Administrative Law Judge Thom-
as A. Ricci issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, and the
General Counsel filed a brief in support of the admin-
istrative law judge’s decision.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the record in light of the
exceptions and briefs and has decided to affirm the
judge’s rulings, findings, and conclusions and to adopt
the recommended Order as modified.1
The judge found, and we agree, that the Respondent
violated Section 8(a)(5) and (1) of the Act by refusing
to furnish the Union with the following information
that is relevant and necessary for the Union to perform
its function of processing the grievance of Kenneth
Seropian concerning his discharge: the written security
report, the invoice records, and the names of two wit-
nesses.
In adopting the judge’s finding that the Respondent
violated the Act by refusing to furnish the Union with
the names of two of the witnesses named in the secu-
rity report, we rely on Transport of New Jersey, 233
NLRB 694 (1977), in which the Board held that an
employer has a duty to furnish a union, on request, the
names of witnesses to an incident for which an em-
ployee has been disciplined.
The Respondent claims that the names of these two
witnesses should not be disclosed to the Union because
there is evidence of actual harassment of the two other
witnesses whose names were provided. In this regard,
the Respondent asserts that Seropian’s fiancee is in-
volved in litigation with those individuals. Not only
did the Respondent fail to present evidence as to the
subject of the lawsuit, but also it has failed to show
that the litigation is in any way related to or instigated
by the witnesses’ participation in the investigation of
Seropian’s activities. We therefore find that the Re-
spondent has not shown that there has been actual har-
assment of the witnesses whose names have already
been provided to the Union and find that any potential
danger of harassment remains speculative.
The Respondent further claims that the security re-
port is not subject to disclosure because it was pre-
pared in anticipation of litigation. In support of this de-
fense the Respondent alleges that it was alerted to
Seropian’s alleged misconduct only when Hyannis
Telephone Answering Service (HTAS) notified the Re-
spondent about possible sabotage of HTAS equipment
by Seropian and that the local police were investigat-
ing the matter. However, even if the Respondent first
learned of the alleged misconduct in this way, this evi-
dence does not establish that the Respondent prepared
the report because of anticipated litigation. Rather, the
Respondent has made this assertion without any sup-
porting evidence beyond mere suspicion and specula-
tion. We therefore find this defense also without merit.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, New
England Telephone Company, Boston, Massachusetts,
its officers, agents, successors, and assigns, shall take
the action set forth in the recommended Order as
modified.
1. Letter the first paragraph in section 1 as ‘‘(a),’’
and reletter the next two paragraphs as ‘‘(b)’’ and
‘‘(c),’’ respectively.
2. Substitute the following for paragraph 2(c).
‘‘(c) Notify the Regional Director in writing within
20 days from the date of this order what steps the Re-
spondent has taken to comply.’’
MEMBER OVIATT, concurring.
I join in my colleagues’ disposition of this case. I
write separately, however, to explore more fully the
factual underpinnings for the Respondent’s defenses to
the Union’s request for certain information the Union
contended was necessary to its processing of a griev-
ance challenging the discharge of Kenneth Seropian, a
splice service technician.
Seropian was fired by David Magnant, director of
operations, on the basis of information obtained by the
Respondent’s security department. So far as the record
shows, the security department’s operations are not
separated by a wall of secrecy from the Respondent’s
other operational units, and there is no evidence that
security works autonomously. Indeed, the security de-
partment’s investigation of Seropian’s activities was
instituted at Magnant’s direction. Security had uncov-
ered evidence allegedly showing that Seropian had
worked for another company, Hyannis Telephone An-
swering Service, while simultaneously being paid by
the Respondent. Pursuant to its investigation, security
prepared a written report. The Union’s information re-
quest asked, among other things, for that written re-
port.
As I understand it, the Respondent does not dispute
that the information in the written security report was
197NEW ENGLAND TELEPHONE CO.
1 The parties stipulated that the report contained information ‘‘rel-
ative to the reasons for . . . [Seropian’s] termination.’’
2 The Respondent has not excepted to this finding of fact.
3 The Respondent does not contend that the report contained wit-
ness’ statements that might be privileged against disclosure. In fact,
the Respondent specifically acknowledged in its brief that the report
did not contain such statements. (R. Br. 12.)
4 I need not and do not reach the question whether, even if
Magnant had testified as to the complete contents of the oral report
and had orally made that available to the Union, the Union was
nonetheless entitled to the written report, on which security based its
oral report: (1) to test Magnant’s recollection of what he had been
told by security; or (2) to determine whether security, which had
made its investigation at Magnant’s direction, had nonetheless with-
held from its oral report information in the written report that was
pertinent to the resolution of the grievance.
5 This was not the reason the Respondent gave the Union for re-
fusing to turn over the report. At the time, the Respondent’s man-
agers told the Union only that they did not have the report; it had
been retained by security.
relevant to Seropian’s discharge.1 Instead, the Re-
spondent contends that it did not have to disclose the
security report because Magnant gave the Union suffi-
cient information apart from the report to process the
grievance. Thus, the Respondent argues that Magnant,
who never saw the security report, transmitted to the
Union ‘‘the same information’’ he received orally from
security, information on which Magnant decided to
discharge Seropian. On this basis, the Respondent con-
tends that the Union had no need for the actual written
report.
The judge found that after the security department
had completed its investigation, ‘‘they met with
Magnant with a complete written report in their hands,
and explained it all to the director.’’2 Magnant testified
that he gave to the Union certain information from two
invoices that security had shown to Magnant when se-
curity made its oral report, and gave the Union the
names of two witnesses interviewed by security, as
well.3 He also testified that at the time of its oral re-
port security showed him Seropian’s business card and
a canceled check, told Magnant that Seropian had
acted as a telecommunications vendor in his dealings
with HTAS, and mentioned the names of two wit-
nesses to whom security had spoken.
Significantly, however, Magnant never testified that
this was all the information Magnant had received
from security’s oral report or even that when he dis-
charged Seropian he relied only on the information that
he gave to the Union, and nothing else. For all we
know, security gave Magnant a great deal of additional
information in its oral report, including information
that might suggest mitigating circumstances or that
was exculpatory. Because the Respondent did not es-
tablish on the record exactly what else was in the oral
report, or that Magnant’s recounting of the oral re-
port’s contents was in fact a complete statement of
what he had been told by security, the Respondent’s
defense must fail.4
The Respondent also defends on the ground that the
written security report is privileged against disclosure
because it was prepared in anticipation of litigation.5
Magnant testified that one of his subordinates, Area
Operations Manager Charles Coleman, informed
Magnant that Hyannis Telephone Answering Service
had complained to Coleman that some of HTAS’
equipment had been sabotaged. HTAS suspected that
Seropian was responsible. Magnant testified that he
turned the matter over to the security department on
the basis that ‘‘there was potential litigation against the
company because of the sabotage issue.’’ The record
does not reveal, however, that the security depart-
ment’s written report, sought by the Union, contained
any information about the sabotage that, according to
Magnant, might have resulted in litigation and that
was, according to Magnant, the basis for bringing in
security in the first place. What record evidence there
is on this point is to the contrary. Thus, Magnant testi-
fied that when security made its oral report to him se-
curity did not ‘‘make any report . . . with respect to
the allegation that there had been a sabotage of equip-
ment done by Mr. Seropian.’’
The Respondent does not now contend that it antici-
pated litigation over what appears to be the actual sub-
ject matter of the written report—Seropian’s work for
HTAS at the same time he was being paid by the Re-
spondent. This information was plainly compiled in the
ordinary course of the Respondent’s business to deter-
mine whether Seropian should be disciplined or dis-
charged. See Atlanta Coca-Cola Bottling Co. v. Trans-
america Insurance Co., 61 F.R.D 115, 118 (D.Ga.
1972). In the absence of a showing—or even an asser-
tion—that the report actually contained information on
sabotage (which the Respondent contends was its basis
for anticipating litigation)—the report cannot now be
shielded from discovery on that basis. See Sham v.
Hyannis Heritage House Hotel, 118 F.R.D. 24
(D.Mass. 1987).
As the Respondent’s defenses to the disclosure of
the security department’s written report are without
merit, I agree with my colleagues that the report had
to be turned over to the Union, and that the Respond-
ent’s refusal to do so violated Section 8(a)(5) of the
Act.
Gerald Wolper, Esq., for the General Counsel.
Pamela A. Smith, Esq., of Boston, Massachusetts, for the Re-
spondent.
Harold Lichten, Esq. and Warren Pyle, Esq. (Angoff, Gold-
man, Manning, Pyle, Wanger & Hiatt), of Boston, Massa-
chusetts, for the Charging Party.
198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
THOMAS A. RICCI, Administrative Law Judge. A hearing
in this proceeding was held in Boston, Massachusetts, on
February 11, 1991, on complaint of the General Counsel
against New England Telephone Company (the Respondent).
The complaint issued on September 20, 1990, on a charge
filed on August 3, 1990, by Local 2322, International Broth-
erhood of Electrical Workers, AFL–CIO (the Union or the
Charging Party). The sole issue presented is whether the Re-
spondent violated Section 8(a)(1) and (5) of the statute when
it refused to produce, at the Union’s request, the recorded
documents in its possession which the Company said were
the basis for the discharge of an employee regularly rep-
resented by the Union. Briefs were filed by the General
Counsel and the Respondent.
On the entire record and from my observation of the wit-
nesses, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
New England Telephone Company, with a place of busi-
ness in Boston, Massachusetts, is engaged in the furnishing
of telephone communications service. During the calendar
year ending December 31, 1989, in the course of its business
it derived gross revenues in excess of $50,000. During the
same period in the course of its business, it purchased and
received at its Massachusetts facility products, goods, and
materials valued in excess of $50,000 directly from points
outside the Commonwealth of Massachusetts. I find that the
Respondent is an employer engaged in commerce within the
meaning of the statutes.
II. THE LABOR ORGANIZATION INVOLVED
I find that Local 2322, International Brotherhood of Elec-
trical Workers, AFL–CIO is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICE
This is a very simple case and the answer could not be
clearer. On July 6, l990, the Company fired a man, Kenneth
Seropian, on the ground that on certain days, while being
paid full time by this Company, he in fact worked for an-
other company, called Hyannis Answering Service, and was
paid by that company for such work. Seropian filed a griev-
ance and the Union is now processing it according to the
contract in effect between the Company and the Union.
During the first two steps of the grievance procedure, and
also by direct mail, the Union asked management to be
shown whatever documents it had relied on for the decision
to discharge the man. The Respondent refused to produce
them. The refusal to produce those documents—precisely
itemized here below—is called a violation of Section 8(a)(5)
of the Act. If the complaint is good, the Respondent must
be ordered to produce them now.
Admittedly the decision to discharge Seropian was made
by David Magnant, director of operations, and Charles Cole-
man, an area manager. When these supervisors learned that
the employee had misconducted himself, they ask their secu-
rity department to investigate the matter and report to them.
When security had done that, they met with Magnant with
a complete written report in their hands, and explained it all
to the director. They said, as is also admitted by the Re-
spondent’s witness, that Seropian had done work for the
Hyannis Company while simultaneously being paid by the
Respondent, that they had two invoices, bills Seropian had
given to Hyannis to be paid for time worked for it, copies
of the checks he had received from that company, the names
of four witnesses they had spoken to about the matter, etc.
On the basis of that information and documents, Seropian
was discharged.
At the second grievance step, before deciding to go to ar-
bitration, Richard Cappiello, the business manager of the
local union, asked management to show him the written se-
curity report, and especially the invoices Seropian was said
to have given to Hyannis for his money, and the names of
the four persons whose stories were in the security report. In
response to this request, the Company gave Cappiello the
names of two of the witnesses, with several of what are
called timesheets from Seropian’s personnel record. Time-
sheets are records of the Respondent Company which show
what days, what hours, and precisely when the employee was
paid or on a certain day. The Company refused to produce
any other documents. More precisely, as alleged in the com-
plaint and as also admitted by the Respondent, it refused to
produce the invoices, the written report prepared by the secu-
rity employees, and the names of the of other witnesses they
had interviewed.
Cappiello’s explanation at the hearing of why the Union
had to have all of these documents in order to decide wheth-
er to bring the grievance to arbitration precisely sums up the
case:
I know that I said: ‘‘How could you expect us to
represent and determine whether we’re going to go for-
ward with a grievance? And how would we ever inves-
tigate it if you tell us you have witnesses and won’t
give us their names? You tell us you have time sheets,
you won’t give us the times of what he actually did on
those dates. How could we possibly represent the griev-
ant under those conditions?
Question: Was the Respondent obligated to give the duly
recognize representative of its employees the two documents
in question and the names of those two additional witnesses?
I find that by its refusal to produce for the Union the secu-
rity report and the invoices Cappiello gave to Hyannis, and
by its refusal to give the Union the names of the two added
witnesses, the Respondent violated Section 8(a)(5) of the
Act. NLRB v. Acme Industrial Co., 385 U.S. 432 (1967).
Magnant came up with several defenses at the hearing,
none of them having any meaning at all. He started by say-
ing he did not have access to the documents, either at the
grievance sessions or in August l990 at the time of the hear-
ing. Can there be any doubt that the Respondent is in posses-
sion of those documents? I am sure. Magnan does not stand
apart from the Company, as though he were a completely
separate entity. That argument merits no more comment.
Magnant also said that the decision to discharge Seropian
was based on what he and Coleman were told orally by the
security officers, and not on the written security report. Ac-
199NEW ENGLAND TELEPHONE CO.
1 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
2 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
cording to him, the total report prepared by the company in-
vestigators had nothing to do with the discharge—simply be-
cause he, Magnant, did not have it in his hand while the se-
curity people read it and explained it all to him. It is not a
defense that deserves any consideration here. See New Jersey
Bell Telephone Co., 300 NLRB 42 (1990).
As to his refusal to produce the ‘‘invoices,’’ i.e., the docu-
ments which proved Seropian worked for another company
while being paid by the Respondent, Magnant argued it was
enough to have given the Union the man’s timesheets. All
the timesheets show is what day and what hours Seropian
was paid for during these days by the Respondent. On their
face they show nothing wrong. Without the invoices—to be
considered together with the timesheets, they are meaning-
less. Again this too is only a twisted idea that is best left
alone.
That it was the ‘‘invoices’’ and not the Company or the
Respondent’s own records, that formed the basis for the deci-
sion to fire the man, could not be clearer. From Magnant’s
testimony:
Q. Have you ever had an opportunity to read or re-
view any written security report prepared by security?
A. No, I have not.
Q. Let me as you this [sic], what information did
they give you?
A. They gave me a verbal report of their investiga-
tion. . . . They indicated to that they had two invoices
indicating Mr. Seropian had performed the work on
given dates, had put in a certain number of hours on
given dates, and that these dates were also dates that
we, as New England Telephone, had employed and paid
Mr. Seropian to work for New England Telephone.
Enough about this so-called defense.
The names of the two persons that the Respondent refused
to give the Union were persons whom the security investiga-
tors had questioned in the study of the situation. These two
names must also be given to the Union now. Transport of
New Jersey, 233 NLRB 694 (1977). Those names are also
surely in the written report which the Respondent must give
to the Union in full. In order to be sure, however, I must
order the production of those two names also.
THE REMEDY
It having been found that the Respondent has engaged in
and is engaging in unfair labor practices within the meaning
of Section 8(a)(5) and (1) of the Act, it must be ordered to
cease and desist therefrom. It must also be ordered, on re-
quest, to furnish the Union, as the exclusive representative
for employees in its bargaining unit, the written security re-
port, the invoices described above, and the names of the two
witnesses which the Respondent has refused in the past to
furnish to the Union. In sum, the Respondent must be or-
dered to bargain with the Union in good faith which rep-
resents its employees on any matters that would relate to
conditions of employment in the future.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities that the Respondent set forth in section III,
above, occurring in connection with the operations of the Re-
spondent described in section I, above, have close, intimate,
and substantial relationship to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
CONCLUSIONS OF LAW
1. By refusing during the grievance procedure to furnish
to the Union the written security report, the invoice records,
and the names of two witnesses, all of which information
formed the basis of the discharge of one of the employees,
the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5) and (1)
of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
ORDER
The Respondent, New England Telephone Company, Bos-
ton, Massachusetts, its officers, agents, successors, and as-
signs, shall
l. Cease and desist from
Refusing to bargain in good faith with Local 2322, Inter-
national Brotherhood of Electrical Workers, AFL–CIO as the
exclusive bargaining representative of the employees in its
appropriate bargaining unit.
(a) Refusing to furnish to the Union on request the written
security report, the invoices, and the names of two witnesses,
all of which information formed the basis for the discharge
of an employee, for the Union’s use in the proper processing
of the grievance in its representative capacity of the employ-
ees in question.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request give to the Union the security investigation
report, the invoices, and the name of the two witnesses, all
of which information formed the basis for the discharge of
an employee for the Union’s use in its proper functioning as
representative of the employees.
(b) Post at its place of business in South Yarmouth, Mas-
sachusetts, copies of the attached notice marked ‘‘Appen-
dix.’’2 Copies of the notice, on forms provided by the Re-
gional Director for Region 1, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 1, in writing,
within 28 days after the receipt of this decision, what steps
the Respondent has taken to comply herewith.
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 having found after a
hearing that we violated the law by refusing to furnish Local
2322, International Brotherhood of Electrical Workers, AFL–
CIO certain documents and information necessary for the
Union’s function as representative of their employees:
WE WILL NOT refuse to bargain in good faith with the
Union as the representative of our employees.
WE WILL NOT refuse to furnish the Union, on request, any
information which is necessary and relevant for the Union to
perform its function as the collective-bargaining representa-
tive of our employees in processing grievances.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL, on request, give to the Union copies of the in-
voices discussed at the August 15, 1990 meeting, the names
of witnesses from whom we obtained information which, in
part, formed the basis of the decision to terminate employee
Seropian, and the written security report prepared by our se-
curity department which contained the information relied on
in reaching the decision to discharge that man.
NEW ENGLAND TELEPHONE COMPANY