Northwest Engineering Company

National Labor Relations Board - Board Decisions

Oct 22, 1982

265 N.L.R.B. 190 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Northwest Engineering Company and Local 7389,
United Steelworkers of America, AFL-CIO.
Case 30-CA-6002
October 22, 1982
DECISION AND ORDER
On September 28, 1981, Administrative Law
Judge Richard A. Scully issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and the
General Counsel filed a brief in support of the Ad-
ministrative Law Judge's Decision.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
Contrary to the Administrative Law Judge, we
cannot agree that Respondent violated Section
8(a)(1) of the Act by denying the request of an em-
ployee to have a union representative present
during a lunchroom meeting of a group of employ-
ees to review work rules. Since there is insufficient
evidence to support a finding that the employees
had reasonable cause to believe that the meeting
would result in disciplinary action, we also cannot
agree with the Administrative Law Judge's conclu-
sion that the suspension of employee Michael Ken-
nedy for insubordinate conduct during the course
of that meeting was wrongful and requires a make-
whole remedy.
The facts, as found by the Administrative Law
Judge, indicate that on the day prior to the meet-
ing at issue, Respondent's supervisors had ques-
tioned Kennedy and his coworker, Ronald
Kriescher, about damage to a wall at the ware-
house where both are employed as part of the out-
side crew. The two employees were also read the
rules and regulations, so that both would be aware
of the possible disciplinary consequences of causing
such damage. A union representative attended that
meeting, which was described by Respondent as
"more or less an investigatory meeting."
On the following day, Respondent's supervisor,
Kapla, observed what he considered to be an inten-
tional work slowdown by the outside crew. Later
that day, Kapla scheduled a meeting of the five
inside and outside crewmembers, to be held in the
employees' lunchroom. When asked by Kennedy
what the meeting would be about, and if he could
have a union steward there, Kapla told Kennedy
that a steward would not be needed and to "just
shut up and sit down." The meeting was attended
by Foreman Kapla and his assistant foreman,
Kemp, in addition to five employees.
265 NLRB No. 26
Kapla passed out copies of the plant rules and
regulations to those assembled and began reading
through the rules and giving examples of what he
considered to be violations. When Kapla got to the
rule dealing with willful hampering of production,
he referred to the slowdown he had observed that
morning and identified Kennedy as being "guilty of
this one." A heated discussion then ensued between
Kennedy and Kapla, with Kennedy swearing and
calling Kapla an "asshole." The next day Kennedy
was suspended for 3 days and warned that his next
offense would result in discharge because of his use
of abusive language at the previous day's meeting.
Kapla, Kemp, and Plant Manager Poss were all
present in the meeting at which Kennedy was ad-
vised of his suspension, as was Kennedy's union
steward, Miller.
On the basis of these facts, the Administrative
Law Judge found, and our dissenting colleagues
agree, that Respondent violated the rights of its
employees as outlined by the Supreme Court in
N.L.R.B. v. J. Weingarten, Inc.,' by requiring them
to attend a meeting which they had reasonable
cause to believe could result in disciplinary action
after denying a request for union representation. It
is not every employee meeting, however, to which
Weingarten rights attach, and we are unable to
agree that Respondent was obligated to comply
with the request for a union representative's pres-
ence before it could read its plant rules and regula-
tions and cite examples of rule infractions to an as-
semblage of its employees.
There is no evidence that the purpose of the
meeting was investigatory. No questions were
asked of anyone. Nor was any discipline meted out.
The Administrative Law Judge, however, makes
much of the fact that the meeting was called after
Kapla observed what he considered to be a slow-
down by the outside crew earlier in the day. That
the meeting may have been prompted by such inci-
dent does not establish that the purpose of the
meeting was investigatory or disciplinary. Weingar-
ten rights do not arise simply because an employer
calls a meeting of its employees to discuss a per-
ceived problem in the way its employees are carry-
ing out their duties. Work performance is a matter
of legitimate concern to an employer. An employer
surely retains the prerogative of calling a meeting
of a group of employees, at which no disciplinary
actions are contemplated or taken, simply to advise
them of the employer's valid work performance ex-
pectations and to inform them of the possible con-
' 420 U.s. 251 (1975).
190
NORTHWEST ENGINEERING COMPANY
sequences of noncompliance, without invoking the
spectre of Weingarten.2
It is true that, in the course of reading the rules
to the employees, Kapla used Kennedy as an exam-
ple of a rule violator, and that the offense for
which he was cited occurred during the alleged
slowdown. But these facts are insufficient to con-
vert the meeting from a general shop meeting, in-
formational in nature, to one involving the likeli-
hood of discipline. There is no indication that Ken-
nedy was to be punished for his alleged offending
conduct, or that any other member of his crew
would be disciplined for his actions. Indeed, the
whole tenor of the meeting leads to the opposite
conclusion: the entire shop was there; the purpose
of the meeting clearly was stated to all at the
outset; the rules were read in their entirety; several
examples were given of other infractions, as well as
Kennedy's; and the subject matter was of common
interest and concern to all the employees, it did not
relate to any one specific employee as to any single
instance of purported misconduct or deficiency in
performance. In short, it was a general shop meet-
ing held by Respondent to express its concerns
about the attitude of the employees toward their
jobs. 3
In these circumstances, the nature of the meet-
ing, and its purpose, was not changed merely be-
cause the employees, including Kennedy, were put
on notice that future violations of the rules could
lead to discipline. That, after all, was made explicit
by the reading of the rules. Weingarten, however, is
not concerned with employees having reason to be-
lieve that discipline will be imposed for future of-
fenses; it relates to past conduct for which employ-
ees fear the imposition of current sanctions.
Thus, even if the meeting had served as a forum
for singling out Kennedy, that fact would not alter
the character of the meeting which was held.
Absent evidence that discipline would follow, Ken-
nedy's being used as an example of an employee
engaging in a rule infraction, while perhaps embar-
rassing to Kennedy and even unfair, is not enough
to make Weingarten applicable. It is immaterial that
In this regard, the Supreme Court recognized in the Weingarten case
that an employee's exercise of the right to union representation may not
interfere with legitimate employer prerogatives. N.LR.B. v. J. Weingar-
ten, Inc., supra at 258.
s The dissent's assertion that the meeting was used "as a smokescreen
to disguise what would otherwise be an investigatory or disciplinary in-
terview" is without foundation. We fail to see, in the circumstances of
this case, how Respondent's citing infractions of its rules and regulations
in the course of reading and discussing them involves Weingarten rights
absent evidence that discipline would follow. The dissent concedes that a
reading and discussion of such rules and regulations does not give rise to
Weingarten. In such a context, citing examples of rules breaches would
seem to be warranted as part of the discussion. Lennox Industries Inc.,
244 NLRB 607 (1979), relied on by the dissent, is factually distinguish-
able and therefore inapposite.
Respondent may have foreseen that Kennedy
would attempt to defend himself, or that there
would likely be some give and take between Kapla
and the employees. The exchange of accusations
and denials, or the interchange of viewpoints,
claims, and counterclaims, does not determine
whether a Weingarten right exists at such a meet-
ing; what is determinative is whether discipline rea-
sonably can be expected to follow. Here, the facts
did not show that disciplinary action resulting from
the meeting was a reasonable likelihood and,
indeed, none was taken. 4 This last fact cannot be
lightly dismissed in considering whether Weingar-
ten applies in this case, for it belies a finding that
the meeting was concerned with investigating the
slowdown that allegedly had occurred that morn-
ing and with disciplining those involved. In this
connection, at both the investigatory interview
held the day before the meeting at issue and the
disciplinary interview held the day following, Ken-
nedy was fully accorded the benefits of union rep-
resentation by Respondent-hardly the actions of
an employer bent on contravening the rights of em-
ployees under Weingarten. We find, therefore, that
Kennedy's insubordinate reaction to Kapla's asser-
tion cannot reasonably be attributed to Respond-
ent's failure to afford him the presence of a union
representative or condoned as arising out of that
failure.
Accordingly, we conclude that Respondent did
not violate the Act either by requiring Kennedy
and other employees to attend the above-described
meeting without the presence of a union repre-
sentative, or by taking disciplinary action against
Kennedy as a result of his insubordinate conduct at
that meeting. Therefore, we shall dismiss the com-
plaint in its entirety.
4 That Kennedy and Krieacher had been questioned the day before
about a wholly unrelated matter-damage to company property-does not
warrant a different conclusion. Contrary to the Administrative Law
Judge, and the dissenters, we believe that it was significant that the meet-
ing was for all employees, not just those two or their other crew-
members. In any event, whatever fears they may have harbored about
potential disciplinary action should have been substantially allayed once
it became apparent that the meeting was for the shop. Moreover, we
deem Kapla's refusal to disclose the purpose of the meeting to Kennedy
alone in response to his inquiry is of no consequence since at the outset
of the meeting Kapla told all the assembled employees of its purpose.
Nor does it matter that Kapla opened the meeting by alluding in general
to the concerns which led Respondent to call it. Such remarks were in-
troductory in nature, and nothing more is to be read into them. They fail
to evidence a purpose of the meeting other than that indicated by Kapla
and the meeting itself. In this regard, the dissent errs in focusing exclu-
sively on Kennedy's and Kriescher's fears without taking into account
the context of the meeting and its stated purpose. An employee's fear of
discipline cannot by itself convert a meeting into a disciplinary or investi-
gatory exercise. If the meeting is not intended to be and in fact is not
concerned with discipline or an investigation into employee conduct, and
the employee is made aware of this either before or at the meeting, the
employee's fear to the contrary is immaterial. Such is the case presented
here.
191
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
MEMBERS JENKINS and HUNTER, dissenting:
Contrary to our colleagues, we agree with the
Administrative Law Judge's finding that Respond-
ent violated Section 8(a)(1) of the Act by: (1) deny-
ing the requests of employees Kennedy and
Kriescher to have a union representative present
during a meeting which those employees had rea-
sonable cause to believe would result in disciplin-
ary action; and (2) suspending employee Kennedy
as a result of that meeting.
The facts concerning this matter are not compli-
cated. As found by the Administrative Law Judge,
a hole was found in a wall at Respondent's ware-
house on April 28, 1980. 5 Assistant Foreman Kemp
reported to Foreman Kapla that he (Kemp) had
observed Kennedy and Kriescher in the vicinity of
the hole immediately before it was discovered.
Later that day, Kapla, suspecting that the damage
was caused by Kennedy and Kriescher, called the
two employees into his office for a meeting. Virtu-
ally all of Respondent's supervisory personnel were
present at the meeting, as was Union Steward
Miller. Head Foreman Dorak questioned Kennedy
and Kriescher about the damage, but made no ac-
cusations of responsibility, and read aloud Re-
spondent's rules and regulations. Dorak, who de-
scribed the conference as "more or less an investi-
gatory meeting," explained that he read the rules
and regulations to the two employees "so they
were aware of what could happen to them if disci-
plinary action was taken against them."
At or about 11:45 the following morning, Kapla
observed what he considered to be an intentional
work slowdown by the "outside crew," which con-
sisted of Kennedy, Kriescher, and a third employ-
ee, and reported this to Dorak. At 3:10 that after-
noon, Kennedy and Kriescher were instructed by
Kapla to.go to the lunch table in the warehouse for
a meeting. Kennedy asked Kapla what the meeting
was about and also asked if a union steward could
be present. Kapla responded, "just shut up and sit
down." Kriescher then asked if a union steward
could be present, but Kapla failed to respond.
Shortly thereafter, the rest of Respondent's em-
ployees arrived at the lunch table. Kapla then
began the meeting by passing out copies of Re-
spondent's rules and regulations, reading aloud
through the rules, and giving specific examples of
what he considered to be rule violations. When
5 Unless otherwise noted, all dates are in 1980.
Kapla reached rule 4(A), concerning willful ham-
pering of production, he stated, "Kennedy, you're
guilty of this one." Kennedy then asked what he
had done, and Kapla replied that he had seen Ken-
nedy hiding behind the crane. When Kennedy at-
tempted to explain what he had been doing behind
the crane, Kapla accused Kennedy of being a
"liar," and said that he (Kapla) had seen Kennedy
"hiding back there." This exchange between Ken-
nedy and Kapla, described by Kennedy as being
"very heated," continued for about 5 minutes.
During the course of the exchange, Kennedy re-
ferred to Kapla as an "asshole." Another employee
present at the meeting, Carlson, described the
meeting as Kapla "more or less reading out Mike
Kennedy for not doing his job properly."
On April 30, Kennedy was called to a meeting
with Kapla, Kemp, and Plant Manager Poss. Union
Steward Miller also attended this meeting. Poss ex-
plained that the meeting concerned Kennedy's use
of abusive language to Kapla in the meeting the
previous day. At the conclusion of the meeting,
Poss said that he would investigate the abusive lan-
guage matter further. The following day Kennedy
was suspended for 3 days and warned that the next
offense would result in discharge.
Based on the foregoing, the Administrative Law
Judge found, and we agree, that Respondent un-
lawfully infringed on Kennedy's and Kriescher's
Weingarten rights6 by requiring them to attend an
interview which they had reasonable cause to be-
lieve could result in disciplinary action after deny-
ing their requests for union representation. Our col-
leagues, however, find that there is insufficient evi-
dence to support a finding that the employees had
reasonable cause to believe the meeting would
result in disciplinary action, and further find that
there is no evidence that the meeting was investiga-
tory or disciplinary in character.
Initially, we find it plain that Kennedy and
Kriescher, based on an objective standard, had rea-
sonable cause to fear that discipline might result
from the April 29 meeting. Those two employees
had been questioned only the day before concern-
ing alleged damage to a wall of the warehouse and,
while not directly accused of causing that damage,
they were explicitly warned that discipline could
result from violating company rules. The fact that,
shortly after asking for their union representative, a
request denied with a curt answer of "shut up and
sit down," other employees joined Kennedy and
Kriescher did not allay the reasonable nature of
their fear of discipline. Indeed, on direct examina-
tion Kapla admitted that he opened the meeting by
8 N.LR.B. v. J. Weingarten. Inc., 420 U.S. 251 (1975).
192
NORTHWEST ENGINEERING COMPANY
stating, "Ryan Dorak requested that we have this
meeting because of the damage to the Company
property and things that have been going on
lately." The Administrative Law Judge found that
this latter reference referred to the alleged slow-
down of April 29 and an earlier instance of an al-
leged slowdown-in both of which Kennedy and
Kriescher allegedly had participated. In these cir-
cumstances, we would find that Kennedy and
Kriescher clearly had grounds for reasonable fear
that discipline might result from the meeting at the
time they requested the presence of their steward,
and that Kapla's introductory remarks at the meet-
ing were insufficient to allay those fears.7
With respect to the character of the April 29
meeting, we agree in general with the legal obser-
vations of our colleagues but do not agree that
those observations are at all relevant in the instant
case. An employer, of course, is free at any time to
assemble its employees for the purpose of explain-
ing disciplinary rules, work performance expecta-
tions, or almost any other matter whether or not it
concerns the work relation, without having to meet
the strictures of Weingarten. However, an employer
may not use such a meeting as a smokescreen to
disguise what would otherwise be an investigatory
or disciplinary interview at which the protections
of Weingarten are applicable in full. As we have
recognized in an analogous situation,8 where an
employer begins what might be considered a meet-
ing outside the parameters of Weingarten, but
during the course of which is converted into a dis-
ciplinary or investigatory interview, Weingarten
rights attach immediately. In this case, had the
April 29 meeting been limited to a reading and dis-
cussion of Respondent's rules and regulations, no
right to union representation would have attached.
But that meeting was not so limited; rather, it was
called not just to read the plant rules but also to
I At fn. 4 of its opinion, the majority illustrates the fallacies in its ra-
tionale by twice contradicting itself Thus, the majority argues that the
context in which the meeting was held-the day following an admittedly
investigatory interview-is of little weight. The majority further argues
that Kapla's introductory remarks, stating that the meeting was being
held on account of "the damage to Company property and things that
have been going on lately," are of no import. Immediately following
these contentions, our colleagues accuse us of erring by ignoring these
factors and exclusively focusing on employees' fears. However, it is ap-
parent from the foregoing that it is the majority which ignores context
and stated purpose-the very factors it argues should be considered.. Ad-
ditionally, the majority argues that if the meeting is not intended to be
and in fact is not concerned with an investigation into employee conduct,
and the employee is made aware of this either before or at the meeting,
an employee's fear that discipline might result is immaterial. While this
contention may be an accurate statement of the law, it has no relevance
to the instant case. Here, the meeting was, in fact, an investigation into
employees' conduct (witness the accusations directed at employee Kenne-
dy and see Lennox Industries, discussed infra) and neither Kennedy nor
Kriescher was given any assurances to the contrary despite directly
having asked the purpose of the meeting
s See Baton Rouge Water Works Company, 246 NLRB 995, 997 (1979).
specify infractions of those rules. Moreover, Kapla
directly accused Kennedy of having violated sever-
al of Respondent's rules. The Board previously has
recognized that accusations of misconduct are suffi-
cient to give rise to a right to representation under
Weingarten, even when unaccompanied by threats
of discipline. Thus, in Lennox Industries, Inc., 244
NLRB 607, 608-609 (1979), the full Board9 found a
Weingarten violation where a supervisor ignored an
employee's request for representation after the su-
pervisor said that he had observed the employee
and believed that he was causing a slowdown in
production.' In cases where the Board has refused
to find a Weingarten violation, it often has noted
that, once a request for union representation was
made, the respondent "made no attempt to question
the employee, engage in any manner of dialogue,
or participate in any other interchange which
could be characterized as an interview." ''
In the instant case, however, Respondent denied
repeated requests for union representation, failed to
give any assurances that disciplinary action would
not result from the meeting, identified specific inci-
dents which it considered violations of its plant
rules, and then directly accused employee Kennedy
of particular rule violations. Kennedy thus was re-
quired to defend his conduct; otherwise, his silence
could have been construed as an admission of guilt.
Directly relevant here is the Administrative Law
Judge's explicit ruling discrediting the self-serving
testimony of Kapla and Kemp that, had evidence
of rule violations been obtained at the meeting, no
disciplinary action would have been taken by Re-
spondent. We again emphasize, as did the Adminis-
trative Law Judge, that no assurances were given
against discipline based on facts obtained at the
meeting.
In these circumstances, we would find, in agree-
ment with the Administrative Law Judge, that the
April 29 meeting in fact was an "interview," that
Kennedy reasonably feared that discipline could
result from the meeting, and, therefore, that, upon
request, Kennedy was entitled to the presence of
his union steward. As the evidence clearly shows
that Kennedy made such a request, that Respond-
ent denied the request but continued to hold the in-
terview, and that Kennedy was disciplined as a
9 Then Chairman Fanning and Member Jenkins dissenting in part on
other grounds.
10 The majority finds that Lennox Industries is "factually distinguish-
able and therefore inapposite." However, we note that the majority de-
clines to state the grounds on which they would distinguish that case. As
noted above, in Lennox the full Board found that Weingarten rights at-
tached when a supervisor accused an employee of causing a slowdown in
production. These are the same facts as are present in the instant case.
i" See, e.g., General Electric Company, 240 NLRB 479, 481 (1979);
Amoco Oil Company, 238 NLRB 551, 552 (1978)
193
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
result of that meeting, we believe that the Adminis-
trative Law Judge properly concluded that Re-
spondent violated Section 8(a)(1) of the Act as al-
leged in the complaint, 12 and would affirm his rec-
ommended Order. 13
to It is irrelevant to our inquiry that no discipline resulted from the
facts elicited at the meeting. The only proper inquiries in cases such as
these are whether the meeting was an interview and, if so, whether the
employee or employees requesting the presence of a union representative
reasonably feared that discipline might result from the meeting.
,s Member Jenkins would adopt the Administrative Law Judge's rec-
ommendation that Respondent be required to make whole Michael Ken-
nedy and expunge any records of his unlawful suspension, but would do
so for the reasons set forth in his partial dissent in Kraft Foods, Inc., 251
NLRB 598, 599 (1980). Member Jenkins would not rely upon Coyne Cyl-
inder Company, 251 NLRB 1503 (1980), cited by the Administrative Law
Judge, in which he did not participate.
DECISION
STATEMENT OF THE CASE
RICHARD A. SCULLY, Administrative Law Judge: This
case was heard at Green Bay, Wisconsin, on July 23,
1981, pursuant to a complaint issued by the Regional Di-
rector, National Labor Relations Board, Region 30, on
November 26, 1980, based upon a charge filed by Local
7389, United Steelworkers of America, AFL-CIO (the
Union), on August 25, 1980. The complaint alleges that
Northwest Engineering Company (the Respondent) vio-
lated Section 8(a)(1) of the National Labor Relations
Act, as amended (the Act), by denying the requests of
employees to have a union representative present during
a meeting which the employees had reasonable cause to
believe would result in disciplinary action and by sus-
pending employee Michael Kennedy as a result of that
meeting. The Respondent's timely answer denied that it
had committed any violation of the Act.
Upon the entire record, my observation of the demea-
nor of the witnesses, and after consideration of the briefs
filed by counsel, I make the following:
FINDINGS OF FACT
1. JURISDICTION
The Respondent admits that it is engaged in the manu-
facture and sale of construction equipment at its facility
in Green Bay, Wisconsin, and that during the calendar
year preceding the filing of the complaint in the course
of its business it sold and shipped from its Green Bay fa-
cility directly to points outside of the State of Wisconsin
products, goods, and materials valued in excess of
$50,000. The Respondent admits, and I find, that it is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
The Respondent admits, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The issues are (1) whether the Respondent violated
rights of its employees protected by Section 7 of the Act
as outlined by the Supreme Court in N.L.R.B. v. J.
Weingarten, Inc.,' by requiring them to attend a meeting
which they had reasonable cause to fear might result in
disciplinary action after denying their request for union
representation; and (2) whether employee Michael Ken-
nedy, who was disciplined as a result of his conduct
during such meeting, is entitled to any relief.
B. Facts
The incidents involved here took place at the Re-
spondent's Ashwaubenon warehouse and yard where
there was an outside crew consisting of Michael Kenne-
dy, checker; Terrance Dorn, crane operator; and Ronald
Kriegcher, crane groundman; and an inside crew consist-
ing of Greg Carlson, checker; and Wayne Bero, forklift
operator. Lester Kapla was the foreman at the Ashwau-
benon facility and Larry Kemp, assistant foreman. Ryan
Dorak was head foreman of the Ashwaubenon and
Green Bay yards and Kapla's immediate superior.
On April 28, 1980,2 a hole was found in a wall at the
warehouse. Kemp had seen Kennedy and Kriescher in
the vicinity immediately before the hole was discovered
and, according to the testimony of Kapla, they were sus-
pected of having caused the damage. Later that day,
Kennedy and Kriescher were called into a meeting in
Kapla's office with Kemp, Kapla, Dorak, and Plant Man-
ager Jerry Poss. Also present was Ira Miller, the union
steward for the warehouse employees. Kennedy and
Kriescher were questioned about the damage by Dorak
but no accusations were made nor any blame placed at
the meeting. Dorak testified that he read "the rules and
regulations to them so they were aware of what could
happen to them if disciplinary action was taken against
them." Neither employee was disciplined as a result of
this meeting. In his testimony Dorak described this as
"more or less an investigatory meeting" and a written
report on the meeting he prepared lists as its subject
"Conference on Plant Rules (Damaging Company Prop-
erty)."
At or about 11:45 on the morning of April 29, Kapla
observed what he considered to be an intentional work
slowdown by the outside crew. He reported this to
Dorak.
At 3:10 that afternoon, Kennedy and Kriescher en-
tered the warehouse and were told by Kapla to put their
gear away and to go to the lunch table as there was
going to be a meeting. According to Kennedy's testimo-
ny, he asked Kapla what the meeting was about and if he
could have a union steward at the meeting. Kapla's re-
sponse was, "just shut up and sit down." Kriescher then
asked Kapla if a steward could be present and there was
no response. Kriescher's testimony concerning this con-
versation corroborates that of Kennedy.
420 U.S. 251 (1975).
aAll dates are in 1980.
194
NORTHWEST ENGINEERING COMPANY
Kapla testified that Kennedy asked, "is Ira going to be
there?" and he responded, "no, we don't need Ira for this
meeting." Kapla knew that the Ira to whom Kennedy re-
ferred was his union steward. He did not tell Kennedy
and Kriescher what the meeting was to be about and
when they asked what it was about he told them "to sit
down and be still."
Kemp testified that when Kapla spoke to Kennedy and
Kriescher about the meeting they were 10 to 15 feet
from his office, that the office door was open and the
window may have been open. He heard Kapla tell them
there was to be a meeting and that Kennedy asked if Ira
Miller was going to be there and Kapla said he would
not be needed.
The meeting was held in the lunchroom with the other
members of the outside and inside crews and Kemp also
present. No union steward was present. Kapla passed out
copies of the plant rules and regulations and began read-
ing through the rules, giving examples of what he con-
sidered to be violations.
Kapla's version of the meeting is as follows: when he
got to Rule A(4) concerning willful hampering of pro-
duction he mentioned the apparent slowdown by the
crane crew he had seen that morning. He accused no one
in particular but mentioned what each member of the
crew was doing or not doing at the time. At that point
Kennedy said "you're blaming me," and Kapla said
"no." Kapla then mentioned another incident in which
Kemp had seen the crane crew sitting down. Kennedy
then accused Kapla of "keeping a book" on him which
Kapla denied. Kennedy then called Kapla a "liar" and
while standing up, leaning over the table, and pounding
his fists on the table, continued to rage at Kapla, finally,
calling him an "asshole." Kapla asked Kemp if he had
heard that and was told he had. Kapla then continued
reading through the rules and when he had finished
asked if anyone had any questions. Everyone said "no."
Kapla asked no other questions of anyone and at no time
did he call Kennedy any names or single him out with
respect to any rule violations. Kemp's version of the
meeting is almost identical to that of Kapla except that
he added that Kapla was not red in the face and did not
show any emotion during the meeting.
Kennedy's description of the portion of the meeting
dealing with Rule A(4) was quite different. Kapla came
to that rule and stated: "Kennedy, you're guilty of this
one." Kennedy asked what he had done and Kapla said
he had seen him hiding behind the crane. When Kenne-
dy explained what he had been doing, Kapla called him
"a liar," and said he had seen him "hiding back there."
This exchange continued for about 5 minutes. Kennedy
admitted swearing several times and that he could have
used the word "asshole." He described the exchange as
very heated and stated that Kapla also swore several
times.
Kriescher testified that when Kapla reached Rule A(4)
he said to Kennedy, "Mike, this is the one you broke"
and then went on to explain how he broke it although he
could not remember the example Kapla gave. He could
not recall if Kapla mentioned what the members of the
crane crew were doing or if Kapla spoke about a work
slowdown. He could not recall whether Kennedy was
sitting or standing during the exchange in which he used
the word "asshole" and described the conversation as
"getting a little warm" which meant "no screaming or
throwing punches."
Greg Carlson also attended the meeting on April 29.
He testified that Kapla read a list of rules, explained
what the employees were supposed to be doing, and how
the rules were to be followed. He described Kapla as
"more or less reading out Mike Kennedy for not doing
his job properly," although he could not recall the spe-
cific plant rule involved. Kapla accused Kennedy of
"hiding behind a crane, trying to avoid work" and Ken-
nedy denied it. He recalls hearing Kennedy swear but
did not hear him say the word "asshole."
On April 30, Kennedy attended a meeting with Kapla,
Kemp, and Poss, with Ira Miller present as his steward.
The subject was his use of abusive language to a supervi-
sor at the meeting the previous day. Poss conducted the
meeting and gave Kennedy, Kapla, and Kemp the oppor-
tunity to speak. Poss then told Kennedy that Kapla was
doing him a favor by warning him and that he, Poss,
would have written Kennedy up right away for insubor-
dination as a result of the slowdown. Poss said he would
investigate the abusive language matter further. The fol-
lowing day Kennedy was suspended for 3 days and
warned that the next offense would result in discharge.
B. Contentions of the Parties
It is the General Counsel's position that prior to the
meeting on April 29, Kennedy and Kriescher made a re-
quest that a union steward be present at the meeting and
even if the testimony of Kemp and Kapla that they asked
only if the steward would be present is credited, the re-
quest was, nevertheless, effective to preserve the employ-
ees' right to representation at the meeting. It is also con-
tended that the employees had reason to fear that the
meeting could result in disciplinary action given the ex-
traordinary nature of this meeting, I day after Kennedy
and Kriescher were the subjects of a company inquiry
concerning damage to its property, and the refusal of Su-
pervisor Kapla to divulge the nature of the meeting. It is
further contended that despite the alleged informational
purpose of the meeting to familiarize employees with
company rules, the meeting was not a "run-of-the-mill"
shop-floor conversation but one which involved suffi-
cient risk of discipline as to come within the Weingarten
rule. Finally, it is contended that, although the disciplin-
ary action taken against Kennedy was based upon an of-
fense which was not the subject matter of the unlawful
interview, that offense occurred in the context of the Re-
spondent's 8(a)(1) violation and a make-whole remedy is
necessary.
The Respondent, on the other hand, argues that not
one of the essential elements of a Weingarten violation
has been established. It contends that the meeting was
not an investigatory interview in that nothing was being
asked of the employees either by request for answers or
specific actions. It follows that if the purpose of the
meeting was not to obtain facts to support disciplinary
action that is probable or being seriously considered, the
employees cannot be said to have a reasonable fear that
195
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discipline will result by any objective standard. Finally,
the Respondent contends that the employees did not re-
quest union representation at the meeting, the only in-
quiry being whether the union steward was going to
attend the meeting. This was not an effective request for
representation, the denial of which would violate Wein-
garten.
C. Analysis and Conclusions
It was essential that in order for Weingarten rights to
attach to the April 29 meeting, the employees involved
therein had to make a request for such representation.
The testimony concerning the alleged requests of Kenne-
dy and Kriescher is in conflict. Having observed the de-
meanor of the witnesses and considering other factors
bearing on their credibility, I credit the testimony of
Kennedy that he specifically asked Kapla if they could
have a union steward present at the meeting and that
Kriescher made a similar request over that of Kapla3 and
Kemp.4 Kennedy testified that he had been told by
union steward Ira Miller that if a surprise meeting were
called to make sure Miller was there on their behalf.
Miller, who was a credible and convincing witness, veri-
fied that he told Kennedy, who had been complaining to
him about harassment on the job, to get a union repre-
sentative anytime he had any doubt about whether a
meeting called by management might result in discipline.
Given this background and the fact that Kennedy had
been the subject of an investigative interview the previ-
ous day with a steward in attendance, I find it unlikely
that he would have simply asked if Miller was going to
be present at the meeting and then have been content
with Kapla's statement that Miller was not needed when,
at the same time, Kapla refused to tell him what the
meeting was about. Accordingly, I find that Kennedy
made a request for a union representative prior to the
April 29 meeting. Having made this request on the shop
floor when he was summoned to the meeting, it was not
necessary that he repeat it at the meeting.5
The right to representation afforded by Weingarten is
not without exceptions. There is no right to representa-
tion at a meeting "held solely for the purpose of inform-
ing the employee of, and acting upon, a previously made
disciplinary decision."6 This exception clearly has no ap-
plication here. Another exception, more in point, in-
volves "run-of-the-mill shop-floor conversations as, for
3 Even allowing for a natural tendency to present one's actions in a
favorable light, I found Kapla's testimony concerning what happened at
the April 29 meeting to be incredible. According to him, he sat calmly
and read the rules while Kennedy, without provocation, became increas-
ingly angry and abusive reaching the point where he was standing and
pounding on the table calling Kapla a "liar" and an "asshole" and accus-
ing him of "fucking with my livelihood." In the face of all this, Kapla
contends his only response was, "Michael, Michael, Michael, you are ex-
aggerating." I found Kemp's testimony that Kapla showed no emotion
during the meeting to be equally unbelievable. I also found Kapla's insist-
ence that the slowdown he thought be observed on April 29 had nothing
to do with the holding of the meeting that afternoon casts further doubt
on his credibility.
4 I am not convinced that Kemp was in a position to hear every word
of this conversation when he was in another room 10 to 15 feet away
and, in any event, I credit Kennedy for the reasons stated.
' Lennox Industries, Inc., 244 NLRB 607 (1979).
Baton Rouge Water Works Company, 246 NLRB 995 (1979).
example, the giving of instruction or training or needed
corrections of work techniques" where there would nor-
mally be no basis to fear an adverse impact from such a
meeting. 7 If this case involved only a routine reading of
plant work rules to an assembly of department employ-
ees without more, this exception would dispose of the
matter. There are several circumstances presented here,
however, which lead to the conclusion that the meeting
on April 29 was not routine and was not purely informa-
tional.
Although Kapla, Kemp, and Dorak all gave testimony
denying that the meeting was a result of the work slow-
down Kapla thought he saw on the morning of April 29,
the evidence convinces me that it was. Kapla first testi-
fied as follows:
Q. (By Ms. Cherney) Now, the next day was
April 29th. Were you working that day?
A. Yes, I was.
Q. Did you have an opportunity to observe the
outside crew?
A. Yes, I did.
Q. You noticed that they were working slowly,
right?
A. Yes.
Q. In fact, it almost looked like they were inten-
tionally slowing down; is that right?
A. Yes, it did.
Q. And you told your supervisor, Ryan Dorak,
about that?
A. Yes, I did.
Q. And he suggested a meeting?
A. Let's see now. Yes, Ryan suggested-Yes.
Q. Okay. And you had such a meeting that day,
didn't you?
A. Yes.
Kapla also testified that he observed the slowdown at
11:45 a.m. Kemp testified that he first learned there was
to be a meeting from Kapla at "midday around noon or
something." The Company's written report concerning
Kennedy's suspension states in pertinent part:
Tuesday, April 29 - The crane crew was work-
ing very sluggishly, almost like a work slowdown.
Ryan suggested a department meeting to clear the
air in which he went over the entire Plant rules and
gave some examples. Kennedy is on the crane crew
and we didn't want it to look like we were "picking
on him" after Monday.
Although also adamantly denied by Kapla, Kemp, and
Dorak, the evidence convinces me that the focus of the
meeting was Kennedy and his involvement in the appar-
ent slowdown by the crane crew. While he may have
given some other examples of rules violations, Kapla spe-
cifically accused Kennedy of violating Rule A(4) con-
cerning "willful hampering of production" and referred
to the slowdown he had observed that morning.8
Quality Manufacturing Company, 195 NLRB 197, 199 (1972).
8 This finding is based on the credited testimony of Kennedy,
Kriescher, and Carlson. It is noted that Kriescher and Carlson are cur-
Continued
196
NORTHWEST ENGINEERING COMPANY
The reference in the company report to the effect that
they did not want it to look like they were "picking on"
Kennedy implies that this was the reason other employ-
ees in the department were included in the meeting. Al-
though Kapla and Dorak claimed the meeting was called
because there had been several instances of damage to
company property and "a lot of things happening out
there," the only specific incidents disclosed by the
record are the hole in the wall and two alleged work
slowdowns, all three of which allegedly involved Kenne-
dy.
It appears that the format of the April 29 meeting was
similar in many respects to that involving the investiga-
tion of the hole in the wall on the previous day, which
Dorak's memorandum described as a "conference on
plant rules." Although Kapla asked no questions of
anyone, his accusation that Kennedy was "guilty" of vio-
lating Rule A(4) was certainly as likely to evoke a re-
sponse as a question about the matter, if not more so.
Kennedy was accused of causing a work slowdown in
front of the entire warehouse/yard work force, some of
whom had, according to the Respondent's report on
Kennedy's suspension, previously complained "to the
foreman about his wasting time in the bathroom and not
doing his fair share of the work." Under the circum-
stances Kennedy was forced to defend his conduct, as to
have remained silent could well have been construed as
an admission of guilt. The format of the meeting also ap-
pears designed to give other employees the opportunity
to disassociate themselves from the actions of those being
accused, thus, possibly further incriminating the latter.
Other factors leading me to believe the meeting was
not intended solely as a one-sided reading of the compa-
ny's work rules for informational purposes only are the
statement in the Respondent's report, dated May 1, 1980,
concerning the meeting in which Kennedy was given
notice of his suspension, which states that the April 29
meeting was called to "clear up any confusion within the
dept. regarding acceptable rules of behavior" and its
report dated May 2, 1980, which states that Dorak "sug-
gested a department meeting to clear the air." Both state-
ments imply that a give and take between employees and
supervisors was anticipated. Thus, I find that the meeting
involved an attempt by the Respondent to elicit facts and
to permit Kennedy and, perhaps, others to explain or
defend their conduct. As such, it was not a run-of-the-
mill shop-floor conversation of the type exempted from
the Weingarten rule, but was, in effect, "an interview" to
which the right to union representation as a condition of
employee participation was applicable. 9 There is no evi-
dence that the employees were informed that they had a
choice of continuing the meeting without representation
or not attending at all as required by Weingarten. °
rently on layoff from the Respondent, both with some expectation of
recall, and have no personal interest in this matter. Kapla, Kemp, and
Dorak are all still employed by the Respondent. Also the statement of
Poss referred to above, that Kapla had done Kennedy a favor by merely
warning him about his insubordination by hampering production and that
he, Poss, would have written up Kennedy for it right away indicates
there was a definite connection between Kennedy's role in the alleged
slowdown and the meeting.
D See AAA Equipment Service Company, 238 NLRB 390 (1978).
'O United States Postal Service, 241 NLRB 141 (1979).
I also find that the employees, in particular Kennedy
and Kriescher, had reasonable cause to fear that disci-
pline might result from the April 29 meeting. As noted
above, both had on the previous day attended a meeting
involving a similar format in which it was made clear
that they were suspected of having violated the Re-
spondent's rule concerning damaging company property.
While the evidence indicates that investigatory inter-
views were not normally held in the lunchroom, as was
this meeting, this alone was not sufficient to dispel the
employees' fear that discipline might result. Safety meet-
ings normally held in the lunchroom were announced
early in the morning and held about one-half hour before
quitting time. This meeting was held without any prior
notice. The fact that all department employees were
called to the meeting is not particularly significant be-
cause at least three, the members of the outside crew, if
not all five present, were suspected of engaging in the
slowdown. What is more significant is Kapla's admitted
refusal to disclose the purpose of the meeting, his re-
sponse to Kennedy's inquiry being, "sit down and be
still." Further, his response to Kennedy's request that the
union steward be present, that a steward was not needed,
was not sufficient to allay the employees' fear of disci-
plinary action." I do not credit the self-serving testimo-
ny of Kapla and Kemp that had evidence of rule viola-
tions been obtained at the meeting, no disciplinary action
would have been taken. No such assurances were given
at the meeting. The fact that Kriescher testified that he
did not expect to be disciplined as a result of the meeting
may well have been based on his belief that he had done
nothing to warrant discipline. It does not, as the Re-
spondent contends, cast "a significant shadow on Mr.
Kennedy's claim of reasonable fear" that discipline might
result.
Whether the employees' fear of possible disciplinary
action resulting from the interview has a reasonable basis
must be measured "by objective standards under all the
circumstances of the case." 12 Here, there was ample
reason for the employees to fear that' disciplinary action
might result from the meeting on April 29 and nothing
said or done prior to or during the meeting could be
considered to have allayed that fear.
I find that the Respondent violated Section 8(aXl) of
the Act by requiring its warehouse employees to attend
the meeting on April 29 without union representation.
Having found such a violation, the next question is
whether Michael Kennedy, who was disciplined as a
result of his conduct at the meeting, is entitled to a
make-whole remedy because of the Respondent's unlaw-
ful conduct. The General Counsel argues that such a
remedy is necessary since "to hold otherwise would be
to allow the Employer to benefit from its illegal inter-
view." It is further contended that had a union steward
been present at the meeting he might have prevented the
heated argument during which Kennedy uttered the
remark which led to his discipline. Union Steward Miller
testified that he had on occasion been successful in calm-
i See Lennox Industries, Inc., supra at 608.
2 N.L.R.B. v. J Weingarten. Inc.. supra at 257, fn. 5, quoting Quality
Manufacturing Company, 195 NLRB 197 (1972).
197
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing employees who got angry and abusive during the
course of investigatory interviews. It is possible that he
could have played such a role had he been present at the
meeting on April 29.
The Board has held that a make-whole order will not
be routinely granted in every case in which a Weingarten
violation has been found.' 3 That remedy has been limit-
ed to cases in which there has been an unlawful inter-
view, the employee has been disciplined for conduct that
was the subject of the interview, and the employer was
unable to establish that its decision to discipline the em-
ployee was not based on information which it obtained
during the interview. However, this does not address the
question of the appropriate remedy where, as here, disci-
pline results from the employee's conduct during the un-
lawful interview rather than conduct that was the subject
of the interview. No cases directly on point have been
found.
Having found that the heated arguments during which
Kennedy called Kapla an "asshole" was a direct result of
Kapla's accusation that Kennedy was involved in a work
slowdown, the subject which was the principal reason
for and the focus of the meeting, it follows that there
was a definite nexus between the Weingarten violation
and the conduct resulting in disciplinary action. In the
cases which the Board has found a make-whole remedy
inappropriate, the employers were able to establish that
the disciplinary action taken was not based upon any in-
formation obtained during the unlawful interview. Thus,
the disciplinary actions and the Weingarten violations
were completely independent of one another. Here, the
conduct giving rise to the disciplinary action against
Kennedy arose out of and during the course of the Re-
spondent's violation of his Section 7 rights. Consequent-
ly, I believe a make-whole remedy is appropriate and
necessary in this case. This ruling does not purport to
condone Kennedy's conduct at the April 29 meeting,
whether provoked or not, rather, it is designed to
'1 See Kraft Foods, Inc., 251 NLRB 598 (1980); Coyne Cylinder Compa-
ny, 251 NLRB 1503 (1980).
remedy the violation of his rights. Had a union repre-
sentative been present as required under Weingarten,
Kennedy would not be entitled to any relief under the
Act. On the other hand, Weingarten expressly recognized
that the presence and assistance of a knowledgeable rep-
resentative can be beneficial to both the employee and
the employer. Here, it might have prevented the abusive
conduct. The Respondent, having refused to provide re-
quested representation at an interview as required by the
Weingarten decision, should not be permitted to disci-
pline an employee for abusive conduct specifically aris-
ing in the course of discussions concerning the subject
matter of the interview.
CONCLUSIONS OF LAW
I. The Respondent, Northwest Engineering Company,
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent violated Section 8(aXl) of the Act,
by requiring Michael Kennedy and other employees to
submit to an interview which they reasonably feared
might result in discipline, while denying a request for
union representation and by taking disciplinary action
against Michael Kennedy as a result of his conduct at
that interview.
4. The aforementioned unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
It having been found that the Respondent engaged in
unfair labor practices in violation of Section 8(a)(1) of
the Act, I shall recommend that it be required to cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
[Recommended Order omitted from publication.]
198