Pacific Gas & Electric Co.

National Labor Relations Board - Board Decisions

Jan 8, 1981

253 N.L.R.B. 1143 (N.L.R.B. 1981)

PACIFIC GAS & ELECTRIC COMPANY
Pacific Gas & Electric Company and Joseph C.
Green. Case 31-CA-7973-1
January 8, 1981
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On November 14, 1978, Administrative Law
Judge Roger B. Holmes issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief and
Respondent filed an answering 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 to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
This case presents the issue of whether, under
N.L.R.B. v. J. Weingarten, Inc.,' an employee, in
exercising his Section 7 right to a representative at
an investigatory interview, may refuse the assist-
ance of a union representative already on the prem-
ises and insist on the presence of someone else who
is not readily available and who does not normally
represent employees at that location. We find, for
the reasons stated below, that Weingarten rights do
not attach in that situation.
The facts, as found by the Administrative Law
Judge, are not in dispute. The bargaining unit em-
ployees work at two locations at Respondent's
Morro Bay power plant. The power plant is called
the onsite facility, while the tank farm is called the
offsite facility. The two facilities are 20 minutes
apart by car. Because of this geographic separation
the Union has assigned two stewards to each loca-
tion. 2
The Administrative Law Judge found that, at the
time in question, there was an established, if infor-
mal, practice that the onsite stewards handled the
grievances of the onsite employees, while the off-
site stewards provided the same services for the
offsite employees. Thus, when Green asked for a
union representative at the investigatory interview
on January 25, 1978, Supervisors Toombs and
Childs brought in Lawrence Sell, one of the onsite
'420 US 251 (1975).
2 Under sec 102 7(a) of the collective-bargaining agreement, the Union
has the prerogative of appointing stewards, and is free to "designate as
many Shop Stewards as it deems necessary for the proper administration
of its affairs and for the eecution of the provisions of this Agreement"
(Resp Exh 1)
253 NLRB No. 154
stewards. Green, however, objected to Sell because
Sell was friendly with Toombs and was under con-
sideration for a promotion to a position within the
bargaining unit. He insisted on the presence of
Dean Lees, a steward at the offsite location, and a
former onsite steward.
On these facts, the Administrative Law Judge
concluded that Respondent did not violate Section
8(a)(1) of the Act by refusing Green's request for
Lees' representation. For this finding he relied on
Coca-Cola Bottling Co. of Los Angeles, 227 NLRB
1276 (1977). In that case, an employee requested
representation by a vacationing steward even
though the employee knew that another representa-
tive was available. The meeting occurred on
Friday afternoon and the vacationing steward was
not due back until the following Monday morning.
The employer denied the employee's request for
the absent steward and proceeded with the inter-
view. The Board held there that where another
union representative was available, but the employ-
ee did not request him, the employer did not vio-
late Section 8(a)(1) of the Act by proceeding with
the interview in the absence of a representative.
We agree with the Administrative Law Judge
that Coca-Cola is controlling here. Member Jenkins,
however, dissents, as he did in Coca-Cola, since he
believes Weingarten requires an employer to pro-
vide the employee with the representative of his
choice, regardless of how long the employer would
have to delay the interview.
With all respect, our dissenting colleague's view
seems to be inconsistent with both the legal and
policy principles contained in Weingarren. The Su-
preme Court in Weingarten neither stated nor sug-
gested that an employee's interests can only be
safeguarded by the presence of a specific repre-
sentative sought by the employee. To the contrary,
the focus of the decision is on the employee's right
to the presence of a union representative designat-
ed by the union to represent all employees.
These principles control the instant case. Here,
the onsite steward was on the premises while the
offsite steward, requested by Green, was at an-
other, distant location. On this issue, the dissent un-
reasonably minimizes the difficulty of obtaining the
presence of the offsite steward, as opposed to the
one already at the plant, and the impact on normal
operations of the plant. The time cited by the dis-
sent (15-20 minutes) was only the travel time one
way and did not include the time required to locate
the steward. This could only be done either by
two-way radio to a truck at the offsite location or
by sending someone down to get him. If the latter
were necessary, then it would take at least 40 min-
utes to obtain the steward. Thus, both as a general
1143
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
matter, and in this instance, the two stewards were
not equally available.
Furthermore, the Union's assignment of stewards
at both locations reflects its concern that employ-
ees have readily available representation wherever
they were working. Since the Union appointed Sell
as steward, Respondent acted reasonably in provid-
ing Sell to represent Green. Green, of course, did
not want Sell because he doubted Sell's ability to
represent him adequately. Sell, however, was the
designated representative at the time of the inter-
view. The Union reaffirmed its support for him at a
subsequent meeting between Sell, Green, and
Union Business Representative Stalcup and at the
time of the hearing Sell was still one of the onsite
stewards. We therefore agree with the Administra-
tive Law Judge that to support Green's action in
this case would, in effect, nullify the Union's
choice of Sell as a union shop steward.3
Our interpretation of Weingarten must be tem-
pered by a sense of industrial reality. We do not
advance the effectuation of employee rights, or
contribute to the stability of industrial relations, if
we complicate the already complex scheme of
Weingarten by introducing the notion that an em-
ployee may request this union representative in-
stead of that one, perhaps from a far corner of the
plant, and perhaps, in certain instances, contrary to
the union's wishes. In the instant case, a duly desig-
nated union representative was ready, willing, able,
and present. We would inquire no further.
For all of these reasons, we adopt the decision of
the Administrative Law Judge and dismiss the
complaint in its entirety.
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 complaint herein be, and it
hereby is, dismissed.
MEMBER JENKINS, dissenting:
I would find that Respondent violated Section
8(a)(1) of the Act by disciplining employee Green
for refusing to answer questions at an investigatory
interview without the assistance of Union Steward
Lees. Thus, for the reasons stated in then Member
Fanning's and my dissenting opinion in Coca-Cola
3 The contention in the dissent that our decision here sanctions Re-
spondent's attempt to control Green's choice of a representative is predi-
cated upon a misperception of fact. Plainly, it was the Union and not Re-
spondent that selected Sell as shop steward and thereby designated him
as the individual responsible for representing employees in situations such
as that presented here Thus, rather than seeking to control Green's
choice. Respondent merely acted in conformity with the Union's direc-
tions.
Bottling Co. of Los Angeles, 227 NLRB 1276, 1277
(1977), I cannot subscribe to the majority's adop-
tion of the Administrative Law Judge's finding that
Respondent was privileged to force Green to
attend the interview either without representation
or accompanied by a steward chosen by Respond-
ent and whom, for good reason, Green did not
want.
The record shows that, despite Respondent's re-
peated attempts to foist Steward Sell on Green,
Green adamantly rejected Sell. Green had under-
standable concern about Sell's willingness to repre-
sent him fairly and vigorously, since Sell was a
personal friend of the management personnel in-
volved in the dispute, was under consideration for
a management position with Respondent, and sev-
eral days earlier had told Green that, because he
(Sell) was being considered for that position, he
"did not want to get involved in a controversial
issue." After contacting the union office and being
informed by Business Representative Stalcup that
Steward Lees was the grievance representative se-
lected by the Union for him, Green requested that
Lees be brought from another jobsite 15 to 20 min-
utes away to represent him.4 This request was re-
fused by Respondent and Green was suspended for
thereafter refusing to answer Respondent's ques-
tions without the presence of an impartial union
representative.
Frankly, I am baffled by my colleagues' willing-
ness to sanction Respondent's attempt to control
who would represent Green at his disciplinary in-
terview. 5 Both Green and the Union selected Lees;
Respondent selected Sell. There can be no dispute
that obtaining Lees from the other jobsite would
not have been duly burdensome on Respondent. I
can see no other justification for permitting Re-
spondent to dictate or restrict Green's choice of
union representative, inasmuch as Green raised le-
gitimate and serious questions concerning the will-
ingness of Sell to "go to bat" for him. The legiti-
macy of Green's apprehension is underscored by
4 It should be noted that the second onsite steward designated by the
Union was Green himself. Thus, once Sell was eliminated from consider-
ation by his reluctance "to get involved in a controversial issue," the
nearest union steward was Lees and it was Lees whom Green requested
and the Union designated. Contrary to the majority, Lees could hardly
be characterized as being at a "distant" location. The Administrative
Law Judge specifically found that the jobsites were only 3 to 5 miles
part. Moreover, my colleagues' effort to imply that there would be some
difficulty, with accompanying delay, in locating Lees at the offsite job is
fatally flawed by the Administrative Law Judge's finding that Lees was
working only 100 to 200 feet from the office at the offsite facility.
' As stated in Oartes Bros.. Inc., 135 NLRB 1295, 1297 (1962), and reaf-
firmed in National Can Corporation, 200 NLRB 1116, 1123 (1972):
[lit is well established that, in the absence of special circumstances,
an employer does not have a right of choice either affirmative or
negative as to who is to represent employees for any of the purposes
of collective bargaining.
1144
PACIFIC GAS & ELECTRIC COMPANY
Business Representative Stalcup's agreement with
Green that, in view of Sell's reluctance to become
embroiled in controversy, Lees would be the repre-
sentative selected by the Union to represent
Green. 6
Under the circumstances, I can only conclude
that Green was privileged to refuse to participate
in Respondent's investigatory interview without
the presence of Union Steward Lees. Accordingly,
I would find that, by disciplining Green for refus-
ing to answer questions at that interview, Respond-
ent violated Section 8(a)(1) of the Act.
6 Thus, it can hardly be claimed hat Green's rejection of Sell and in-
sistence on Lees would upset the Union's designation of Sell as a shop
steward. If that designation was upset, it was upset by the Union
DECISION
STATEMENT OF THE CASE
ROGER B. Hot MES, Administrative Law Judge: The
unfair labor practice charge in this case was filed on
May 8, 1978, by Joseph C. Green.
The Regional Director for Region 31 of the National
Labor Relations Board, herein called the Board, who
was acting on behalf of the General Counsel of the
Board, issued a complaint and notice of hearing on June
30, 1978, against Pacific Gas & Electric Company, herein
called the Respondent.
The General Counsel's complaint alleges that the Re-
spondent has engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the National Labor Rela-
tions Act, as amended, herein called the Act. Specifical-
ly, the General Counsel contends that on or about Janu-
ary 25, 1978, the Respondent denied Joseph C. Green's
request for union representation at an interview during
which Green was subject to disciplinary action, and that
during that interview the Respondent suspended Green
because Green refused to answer any questions at the in-
terview without the union representation which he had
requested. The Respondent filed an answer to the Gener-
al Counsel's complaint and denied the commission of the
alleged unfair labor practices.
A hearing was held before me on September 12, 1978,
at Santa Maria, California. The time for filing briefs was
set for October 31, 1978. Briefs have been received from
the counsel for the General Counsel and the attorney for
the Respondent.
FINDINGS OF FACT
I. JURISDICTION
The Respondent has been, at all times material herein,
a California corporation with an office and place of busi-
ness located in Morro Bay, California, where it is en-
gaged in providing gas and electrical services as a public
utility.
In the course and conduct of its business operations
the Respondent annually purchases and receives goods
or services valued in excess of $50,000 directly from sup-
pliers located outside the State of California. The Re-
spondent also annually derives gross revenue in excess of
$250,000.
Upon the foregoing facts, and the entire record herein,
I find that the Respondent has been at all times material
herein an employer engaged in commerce and in a busi-
ness affecting commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It was admitted in the pleadings that International
Brotherhood of Electrical Workers, Local 1245, herein
called the Union, has been, at all times material herein, a
labor organization within the meaning of Section 2(5) of
the Act. Based upon the pleading, and the entire record
in this case, I find that fact to be so.
III. THE AI.LEGED UNFAIR LABOR PRACTICE S
A. The Witnesses
In alphabetical order, the following five persons ap-
peared as witnesses at the hearing in this proceeding:
Donald A. Brand is vice president of general construc-
tion for the Respondent. Previously, on January 25.
1978, which is the date that the unfair labor practices are
alleged to have occurred, Brand was a superintendent in
the Respondent's station construction department.
Joseph C. Green was an employee of the Respondent
from 1973 until May 1978. For the last 10 to 12 months
of his employment, Green worked as a hydrosubstation
mechanic in the Respondent's station construction de-
partment at the Morro Bay power plant. Green was a
member of the Union, and he served as a union shop ste-
ward from July 1976 until May 1978. Prior to Green's
arrival at the Morro Bay facility, he had worked at the
Respondent's Midway substation where he was also a
union shop steward.
Dean A. Lees was employed as an electrician at the
Respondent's Morro Bay offsite tank farm at the time of
the hearing. Lees had transferred in November 1977
from working at the main facility of the Respondent at
Morro Bay, which was commonly referred to as the
onsite facility, to working at the offsite facility. Lees had
been a union shop steward for about 3 years at the time
of the hearing in this proceeding.
Lawrence H. Sell has been an employee of the Re-
spondent for about 11-i/2 years. In 1968 Sell worked at
the Respondent's Vaca-Dixon substation where he first
met and worked under R. R. Toombs, who was a fore-
man at that time. Sell next worked at the Respondent's
Pittsburg, California, power plant where he also worked
under Toombs. He acknowledged that on one occasion
in 1975 he and Toombs "went out after a 24-hour clear-
ance and had one drink." Sell further acknowledged at
the hearing that he was a friend of Bob Martin, whom he
had known and worked with since 1972. Sell began
working as an electrician at the Respondent's Morro Bay
onsite facility on September 14, 1977. In late November
or early December 1977 Sell first learned that he was
being considered for the position of working foreman B,
which is the job he has held since March 22, 1978. At
1145
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the time of the hearing in this case, Sell had been a union
shop steward for approximately 7 years.
Roger Stalcup is a business representative of the
Union. Stalcup resides in Napa, California, where he
works, and he also works out of the main headquarters
of the Union which is located in Walnut Creek, Califor-
nia. The Respondent's Morro Bay facilities are located
within the geographical area covered by Stalcup and
also by Business Representative Bob Gibbs.
The findings of fact herein will be based on portions of
the testimony of each one of the witnesses named above.
There are some minor variations in the testimony given
by certain witnesses. However, these minor differences
are not truly significant in resolving the issues presented
in this case.
By way of illustration, there is a minor difference in
the testimony as to the distance between the onsite facili-
ty and the offsite facility at Morro Bay. Both Green and
Lees, said that the distance between the two facilities
was about 3 miles, whereas Brand stated that the dis-
tance was a little over 5 miles. Nevertheless, Green,
Lees, and Brand all agreed that the driving time between
the two facilities was about 20 minutes. Thus, this is one
example of a difference in the testimony, as to the dis-
tance in miles between the two facilities, which is not
meaningful or of any real consequence in resolving the
issues.
Other examples could be given, but they are simply
minor variations in the recollections of the witnesses,
which I attribute to the difficulty of the witnesses in
trying to relate at the hearing in September 1978 what
had occurred in January 1978 and earlier. In making the
findings of fact, I have given consideration to that under-
standable difficulty of the witnesses.
I have based the findings on what appears to me to be
the most reliable and accurate portions of the testimony.
By way of illustration, Green estimated that the size of
the offsite facility was approximately 40 acres, whereas
Lees said that the same facility was about 5 or 6 acres in
size. Since Lees had worked at the offsite facility since
November 1977, I found Lees' statement on this minor
point to be more reliable. Nevertheless, I have relied ex-
tensively upon Green's testimony, but as to that minor
point it seemed to me that Lees was in a better position
to give an estimate as to the size of the facility. Other
examples could be given, but this example illustrates the
point.
In addition to basing the findings of fact upon the tes-
timony of the five witnesses named above, I shall also
base certain findings of fact upon documentary evidence
introduced by the parties at the hearing.
B. The Morro Bay Facilities
The employees who work for the Respondent at
Morro Bay are among the employees who are represent-
ed for purposes of collective bargaining by the Union. A
copy of the applicable contract between the Union and
the Respondent was introduced into evidence as Re-
spondent's Exhibit . The contract is printed in booklet
form and covers 168 pages. In addition, there is another
printed booklet which serves as an exhibit to the con-
tract. It pertains to, among other things, the job classifi-
cations and wage rates of employees. That exhibit covers
an additional 92 pages.
Among the contractual provisions is a section pertain-
ing to the grievance procedure to be followed. (See title
102 "Grievance Procedure" beginning on p. 18 of Resp.
Exh. 1.) Section 102.7(a) of the contract on page 20 pro-
vides:
102.7(a) Except as provided in Section 102.8, the
initial step in the adjustment of a grievance shall be
a discussion between Union's Shop Steward and the
foreman or other immediate supervisor directly in-
volved. The foreman and Shop Steward may dis-
cuss the grievance with the General Foreman or
other supervisor of corresponding authority. The
purpose of such discussions shall be to reach a satis-
factory disposition of the grievance. Discussions
shall be at such time and place as not to interfere
with the work then in progress. Shop Stewards
shall be employees of Company, and Union may
designate as many Shop Stewards as it deems neces-
sary for the proper administration of its affairs and
for the execution of the provisions of this Agree-
ment.
Section 102.8 of the contract pertains to the filing of a
grievance, "by a Union Representative, or his alternate,
directly with the Division Personnel Manager or Super-
visor, or his alternate, for action by the Local Investigat-
ing Committee." (See pp. 21-22 of Resp. Exh. 1.)
As indicated in the previous section of this Decision,
there are two work areas at the Respondent's Morro Bay
facilities. The main facility is commonly referred to as
the onsite facility and the tank farm is commonly re-
ferred to as the offsite facility. It takes about 20 minutes
to drive one way from one facility to the other, and they
are approximately 3 to 5 miles apart. There is an office at
each facility, but there is no telephone communication
between the two sites. Instead, radio communication is
relied upon between the two offices and some of the
foremen have radios in their trucks for communication.
There are approximately 150 employees at the Re-
spondent's Morro Bay facilities. About 50 to 70 of those
employees work at the offsite facility. Both the employ-
ees at the onsite facility and the employees at the offsite
facility work from 8 a.m. to 4:30 p.m.
Lees estimated that the offsite facility covers 5 to 6
acres and is enclosed b) a fence.
C. The Shop Stewards
On January 25, 1978, there were four union shop stew-
ards at the Respondent's Morro Bay facilities. Green and
Sell were shop stewards who worked at the onsite facili-
ty. Lees and Pete DeFoier were shop stewards who
worked at the offsite facility. Business Representative
Stalcup pointed out that the shop stewards are appointed
under the authority of the Union's business manager.
While Green stated that a shop steward had an obliga-
tion to represent all of the bargaining unit employees,
whether they worked at the onsite facility or the offsite
facility, he acknowledged during cross-examination by
the attorney for the Respondent that, with regard to
1146
PACIFIC GAS & ELECTRIC COMPANY
problems concerning employees at the offsite facility,
"Mr. Lees or DeFoier would handle it more than
likely." Generally, Green said that an employee who
worked at the onsite facility would bring his problems to
Green or Sell, but as shop stewards they were not re-
stricted to any geographical areas. Green pointed out
that he had once talked to an employee who worked at
the offsite facility and discussed a problem with him, but
that the employee declined to sign a grievance report.
Therefore, the matter was not carried any further. Green
testified, "But I have never handled anything that hap-
pened on the offsite that I can recall. The main things I
did pertained to the onsite job that I was on."
Sell, who also worked at the onsite facility, stated that
he did not handle any grievances at the offsite facility
prior to January 25, 1978.
Lees transferred from the onsite to the offsite facility
in November 1977. At the time of his transfer, he had a
few grievances or potential grievances being worked on.
Lees estimated that he had gone from the offsite facility
to the onsite facility to talk with Resident Engineer
Toombs and Foreman Martin about 15 times regarding
onsite employees.
One of those grievances that Lees was working on
prior to his transfer to the offsite facility involved em-
ployee Vasquez, who had failed a test. Vasquez had re-
quested to see the test, so, when someone later brought
the test to the onsite facility to show to Vasquez, Shop
Steward Sell was brought in to be present at the time
that Vasquez examined the test. After work that day,
Lees met Vasquez at the onsite facility. Vasquez ex-
pressed his view that Sell "hadn't carried on the way he
expected a shop steward to, you know, to protect his
rights." Lees said that he spoke with Toombs about the
matter, and Toombs told him that the matter was closed,
although they did talk about it informally. Lees said that
this occurred I or 2 weeks prior to January 25, 1978.
As a result of Lees' transfer and his continuing to
process grievances for employees who worked at the
onsite facility, Vice President Brand said he discussed
the matter in late December 1977 or early January 1978
with Toombs. Brand testified, "We established the policy
again at Morro Bay that the onsite stewards would serv-
ice our onsite employees, and that our offsite stewards
would service our offsite employees. And that there
would not be constant traffic going back between the
two work locations."
At the hearing Brand elaborated on the procedure nec-
essary for getting Shop Steward Lees from the offsite fa-
cility to the onsite facility. Brand explained that first of
all there would have to be contact by telephone or radio
to get transportation to the offsite location. Then a
person would have to be available to go out and find
Shop Steward Lees' supervisor and inform him. Then
there would need to be a vehicle and possibly a driver
who could convey Lees down to the onsite office for the
meeting. After the meeting was over, Brand said, "then
the exact replay of all of that for Mr. Lees to get back to
his work location."
During the presentation of rebuttal evidence by coun-
sel for the General Counsel, Business Representative
Stalcup testified, "There is no formal policy or proce-
dure between company and union for calling a shop ste-
ward from one headquarters to another headquarters."
Stalcup further pointed out that there was no contract
provision that delineated which employees individual
shop stewards are to represent. He expressed the view
that an onsite employee had the right to summon an off-
site steward and that the shop steward would be obligat-
ed to represent the onsite employee if requested to do so
by that employee.
D. The Conversation Between Green and Sell During
December 1977 or January 1978
Sell approached Green during the last part of Decem-
ber 1977 or the first part of January 1978 and asked him
why no one wanted Sell as their shop steward repre-
sentative. Sell explained that a few people had said that
they did not want him as a shop steward.
Green replied that "it had been around the job that
[sell] and Mr. Toombs were close personal friends and
people were pretty well leery of him because of that."
Sell explained that he had worked with both Toombs
and Foreman Martin at the Pittsburg power plant.
At the hearing Sell candidly stated that he had talked
with Green regarding the foregoing because Sell was
concerned as to why some people were going to Green
with their problems and leaving Sell out of it.
E. The Conversation Between Green and Sell During
the January 16-20, 1978 Period
Green had a conversation with Sell regarding an engi-
neer who they felt had performed bargaining unit work.
This conversation took place somtime during the period
of January 16 and 20, 1978.
Green asked Sell if he would take some copies of
NLRB rulings regarding that issue to Toombs and see if
Sell could talk with Toombs and get the problem re-
solved.
Sell replied that he did not want to get involved in a
controversial issue like that because he was being consid-
ered for a working foreman's rate at that time and Sell
did not want to get involved in an official capacity.
Green then asked Sell if he would take the information
to Toombs on a personal basis as a friend and talk with
Toombs to see if they could get that issue resolved. Sell
agreed to do so.
Sell also recalled the conversation and acknowledged
that he told Green at that time that he did not want to
get involved "because I was too much in the middle of
that particular situation."
F. The Events on January 24, 1978
The employees at the Respondent's Morro Bay facili-
ties did not punch a timeclock. Instead, the practice was
for a horn to sound at 8 a m., noon, 12:30 p.m., and 4:30
p.m. Sometimes the horn malfunctioned and did not
sound. In those instances the employees went by the time
shown on their watches.
On the morning of January 24, 1978, the horn did not
sound at 8 a.m. Therefore, Green commenced work ac-
cording to his watch at 8:03 a.m. when the assignment
meeting began. That afternoon Green left his work area
1147
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at 4:33 p.m. according to his watch. Green acknowl-
edged at the hearing that he left his work area that after-
noon before hearing the horn sound.
Green was the first person to depart through the com-
pany gate and there were no other persons leaving with
him. Green waved at the gate guard, which was his
usual practice, and she waved back at him. Green then
left and went home.
A week earlier, Ron Childs, who occupied the posi-
tion of gas department foreman had spoken with Green
about the horn not working properly. Childs told Green
that he had observed Green and other employees leaving
to get into their trucks before the horn had sounded.
Childs reminded Green that "we get paid eight hours
and should work for eight hours."
Late during the afternoon of January 24, 1978,
Toombs telephoned Brand and informed him that Green
had left the job early that afternoon before the whistle
blew. Brand said that when Green came in the next day
Toombs should ask Green why he left early.
G. The Events on January 25, 1978
About 8:05 or 8:10 a.m. on January 25, 1978, Foreman
Gary Morts told Green to go to the office of Foreman
Childs before Green began work.
About 8:10 or 8:15 a.m. Green went to Childs' office.
Present were Childs, Shop Steward Sell, and Green.
Green asked Childs if he wanted to see him. Childs re-
sponded affirmatively and said to wait until Morts ar-
rived.
After Morts came into the office, Childs told Green
that he had been seen leaving early yesterday. Childs
asked Green why he had left early. At that point, Green
told Childs that he "wanted union representation at the
professional level." Green specified that he wanted Busi-
ness Respresentative Bob Gibbs. Childs replied that they
had Shop Steward Sell present.
Green said that he did not want Sell as a shop steward
and that Green wanted a person from the Union at the
professional level who was a full-time paid union man.
Childs asked, "Is that your answer?" Childs then ad-
journed the meeting and Green went to work.
About 10:30 that morning Childs informed Green that
Green had an appointment at 11 a.m. with Toombs.
Childs told Green that Green had "until 11 o'clock to
get whoever I wanted as union representation." Green
asked Childs if he could use the telephone and Childs
gave his approval.
Green then obtained his notebook from his truck and
got the telephone number for Business Representative
Gibbs. Green called Gibbs' home telephone number, but
there was no answer. Green then called the Walnut
Creek, California, office of the Union to see if he could
find where Gibbs was. At the hearing, Green explained
that, while Walnut Creek was approximately 320 miles
from Morro Bay, Gibbs was frequently in the area or at
jobsites close to the Morro Bay area.
When Green called the Union's Walnut Creek office,
he learned that Gibbs was in a training meeting, and he
spoke with Business Representative Stalcup. Green relat-
ed to Stalcup what had happened on January 24 and
what had happened that morning. Green advised Stalcup
that Green did not want to use Sell as a shop steward
because of Sell's personal friendship with Toombs and
because Sell was being considered for a working fore-
man's position. Green testified, "I felt there would be
possible prejudice or pressures involved."
In addition, Green told Stalcup about the conversation
Green had with Sell in which Sell had advised him that
he did not want to get involved in controversial issues.
Stalcup told Green that he felt Green should have a
choice of representation and Stalcup asked if Lees was
around and for Green to ask for Lees if Green was not
satisfied with Sell.
Green also metioned to Stalcup that Green planned to
take a tape recorder with him. Stalcup advised that he
did not know whether that would be proper or legal, so
he was not going to tell Green whether to take the tape
recorder into the meeting.
Following his conversation with Stalcup, Green then
telephoned an attorney and related the matter to him.
They spoke for approximately 10 minutes.
At 11 a.m. Green reported to Toombs' office. Present
were Toombs, Childs, and Green. Sell was not present at
first, but he came in about the middle of the interview.
After Green had sat down, Childs asked Green if the
tape recorder was on. Green replied affirmatively.
Toombs said that was illegal. Green responded that he
did not think it was illegal and that he did not have
union representation.
Toombs then inquired, "You don't want union repre-
sentation?" Green replied, "No. I don't have union rep-
resentation."
At that point Green asked Toombs if this was going to
possibly lead to a disciplinary action. Toombs said that it
could possibly lead to it. Green then stated that he
wanted union representation.
Childs said that they had other stewards on the job be-
sides Green and Childs asked Toombs if he wanted to
get another steward. Toombs told Childs to get Sell.
Green spoke up at that point and told Toombs and
Childs that they could get Sell if they wanted to, but
Green would not consider Sell as being his union repre-
sentation in view of the fact that Sell was a close person-
al friend of Toombs and Sell was being considered for a
working foreman's rate. Green said that he did not feel
that Sell could represent him without having possible
pressure put on Sell due to the possible promotion.
Childs left the office at that point. During his absence
Green and Toombs talked about an aerial photograph of
the project. About 10 or 15 minutes later Childs and Sell
came in the office.
During direct examination by counsel for the General
Counsel, Green testified that the following then took
place:
Mr. Toombs said to Sandy, said that I had asked
for union representation and that I had asked for
Dean Lees, and that Dean Lees was not available so
Sandy was going to be my representative.
And Sandy said, okay, and then Mr. Toombs
then said to me, he said, "Now, you have union
representation in here, Mr. Green, would you please
turn that tape deck off?"
1148
PACIFIC GAS & ELECTRIC COMPANY
I said then that I wanted to restate that due to
the fact that Mr. Toombs and Sandy were-had a
close personal relationship and that Sandy was in
for a promotion that I didn't feel that he could
handle the case that was involved there properly
without having any pressures or any pressures being
involved.
And then Sandy said, "Well, I guess there's not
much need in me being here then."
And then I said, "Well, that's not up to me; that's
up to Mr. Toombs."
Then Mr. Toombs said, "I want to make a state-
ment here." He says, "You won't turn off the re-
corder and you won't answer a question that a su-
pervisor asked you." And about that time, some-
place in the conversation, Sandy interrupted and
asked me if I had anything personal-if it was any-
thing personal against him, my objection to him as
being a steward, and I told him, no, that it was not
a personal objection against him-on a personal
basis.
And then Mr. Toombs went on and said that I
refused to answer the question that a supervisor had
asked me; I refused to turn the record off. And I
explained at that time that I did not refuse to
answer a question; that I would answer the question
when I had proper union representation.
And he stated again that I refused to answer the
question and that I was suspended.
Q. Was that the end of the conversation?
A. That was it.
At the hearing, Lees recalled that he was working
about 100 to 200 feet from the office at the offsite facility
on January 25, 1978. Lees said that he had been working
at that location for about a month. At that time Lees had
three persons working with him. One was his apprentice
and the other two were helpers. They were installing
conduit in a foundation. Lees was a journeyman electri-
cian, but he said that it was the standard practice for ap-
prentices to work without a journeyman being present.
Lees stated that he was not contacted on January 25,
1978, by a supervisor to represent Green in Lees capac-
ity as a shop steward.
H. The Conversation on January 27. 1978
There was a conversation among Business Representa-
tive Stalcup, Green, and Sell on January 27, 1978.
During the conversation either Stalcup or Green asked
Sell why he did not want to get involved in any union
business. Sell did not understand, so he asked what he
was talking about. Either Stalcup or Green said that he
had heard that Sell did not want to get involved in any
union business. Green then mentioned their earlier dis-
cussion regarding the engineer performing bargaining
unit work.
Sell explained that what had happened was "a total
misunderstanding between Mr. Green and myself." Sell
said that he meant that he did not want to get involved
in that one particular incident, but Green had taken it to
mean that Sell did not want to get involved in any union
business because of his pending promotion. Sell said
there had been a misunderstanding between Green and
him as to what Sell had meant.
Sell then asked Stalcup if Stalcup was satisfied with
the way that Sell was handling his duties as a shop ste-
ward. Sell stated that if Stalcup was not satisfied he
should tell him so Sell could correct the situation or
Stalcup should remove Sell from his position as shop ste-
ward.
Sell said that he was not removed as a shop steward
and that he still occupied that position at the time of the
hearing on September 12, 1978. The position of working
foreman B to which Sell was advanced on March 22,
1978, is a position still within the bargaining unit.
I. The Reprimand of Green
A copy of an "Employee Reprimand" dated January
27, 1978, and directed to Green was introduced into evi-
dence as General Counsel's Exhibit 2. The document is
typewritten and consists of two pages. In addition,
Green had handwritten a sentence above his signature
and under the heading "Employee's Remarks." In perti-
nent part, the reprimand states:
Foreman's Remarks
On July 18, 1977 you arrived at the Morro Bay
Power Plant and began your new job assignment.
At this time and thereafter you have been instructed
of the practices at Morro Bay Power Plant for
starting and stopping work at the sound of the horn.
On January 24, 1978 you were observed leaving
the job site early in your personal vehicle without
permission and prior to the horn sounding the end
of the day's work. You were logged out the gate by
the guard at 1627 hours. It is also noted that the
gate guard made an effort to stop you from leaving.
On January 25, 1978 at 0810 hours Mr. Ron L.
Childs, Foreman, at my instructions, asked you why
you left the job site early the previous day; you re-
fused to answer. Your leaving the job early and
your refusal to explain why are each disciplinary of-
fenses for which you were suspended without pay.
At 0733 hours on January 26, 1978 you were ob-
served at the intersection of Main Street and Quin-
tana Road, entrance to the General Construction
yard at Morro Bay, carrying a sign stating "P G &
E Labor Policy is Anarchy" and "Human Rights
Carter?-Not at P G & E".
You continued this activity until 1040 hours at
which time you and Mr. Roger Stalcup, Business
Representative IBEW 1245, came into the General
Construction office to discuss your return to work.
Following these discussions you were told to report
to my office at 0800 hours on January 27, 1978 at
which time you would be handed a formal repri-
mand and instructed to report to your regular job
duties.
P G & E views your actions in this matter to be
seriously disruptive and offensive. Although this
disciplinary action is relatively light in view of the
nature of your offenses this is to advise you that
future misconduct of a similar nature will not be
1149
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tolerated and if repeated will have a serious adverse
consequence on your future employment and may
result in your discharge.
Under the heading "Employee's Remarks" and above
his signature, Green wrote the following, "My signature
is not an admittance of guilt or acceptance of any of the
allegations mentioned herein, this letter of reprimand
dated 1-27-1978. It merely acknowledges that I have
read the material contained herein."
Green received the reprimand on January 27, 1978,
from Toombs in his office.
Sometime during the latter part of February 1978,
Green received a letter from the Respondent. The letter
is dated February 3, 1978, and a copy was introduced
into evidence as General Counsel's Exhibit 3. In perti-
nent part, it states:
You were observed leaving the jobsite without per-
mission at Morro Bay Power Plant at 1627 hours on
January 24, 1978 and, in fact, disregarded the gate
guard's attempt to restrain your departure. You
were confronted with this violation of Company
rules at 0810 hours on January 25, 1978 by Mr. Ron
L. Childs and refused to offer any explanation. You
were then placed on indefinite suspension without
pay.
I concur with your supervisor's decision to suspend
you. Your misconduct on the 24th was serious and,
in my opinion, the two-day disciplinary action was
light. However, the time off without pay, and this
letter which will become a part of your personnel
file, will serve to put you on notice that further job
misconduct will have a more serious consequence;
which may include discharge.
/s/ R. S. Bain
R. S. BAIN
J. Conclusions
In Certified Grocers of California, Ltd., 227 NLRB
1211, 1212-13 (1977), the Board commented with regard
to the Supreme Court's decision in N.L.R.B. v. J. Wein-
garten, Inc., 420 U.S. 251 (1975), as follows:
The Supreme Court in Weingarten cited with ap-
proval the Board's decisions in Quality Manufactur-
ing Company4 and Mobil Oil Corporation,5 indicating
that the Board had set forth in those cases the basis
of the statutory right of an employee to refuse to
submit without union representation to an interview
which he reasonably fears may result in his being
disciplined. The Supreme Court, citing relevant lan-
guage in Mobil and Quality found that (1) the right
inheres in the Section 7 guarantee of the right of
employees to act in concert for mutual aid and pro-
tection; (2) the right arises only in situations where
the employee requests representation, i.e., the em-
ployee may forgo his guaranteed right and, if he
prefers, participate in an interview unaccompanied
by his union representative; (3) the employee's right
to request representation as a condition of participa-
tion in an interview is limited to situations where
the employee reasonably believes the investigation
will result in disciplinary action; (4) exercise of the
right may not interfere with legitimate employer
prerogatives and the employer need not justify his
refusal and may leave to the employee the choice
between having an interview unaccompanied by his
representative, or having no interview and forego-
ing any benefits that might be derived from such in-
terview; and (5) the employer has no duty to bar-
gain with any union representative who may be per-
mitted to attend the investigatory interview.
After finding that the Board's holding is permissi-
ble construction of concerted activities, the Court
went on to state that the action of an employee in
seeking to have the assistance of his union repre-
sentative at a confrontation with his employer clear-
ly falls within the literal meaning of Section 7 of the
Act. This is true even though the employee alone
may have an immediate stake in the outcome. The
union representative is safeguarding not only the
particular employee, but also the interests of the
bargaining unit and his presence is an assurance to
other employees in the bargaining unit that they,
too, can obtain his aid and protection if called upon
to attend a like interview.
Requiring a lone employee to attend an investiga-
tory interview which he reasonably believes may
result in the imposition of discipline perpetuates the
inequality the Act was designed to eliminate and
bars recourse to the safeguards provided by the
Act. Such statutory right, the Court found, is in full
harmony with actual industrial practice.
195 NLRB 197 (1972).
' 196 NLRB 1052 (1972).
In Coca-Cola Bottling Co. of Los Angeles, 227 NLRB
1276 (1977), a Board majority adopted the findings, con-
clusions, and recommendations of Administrative Law
Judge Jerrold H. Shapiro, who dismissed the complaint
in that case.
The employee who was being interviewed requested
the presence of his shop steward at the meeting. His
shop steward was on vacation at the time and was not
scheduled to return from vacation until the next work-
day. The supervisor told the employee that the shop ste-
ward was not on the premises and the supervisor did not
believe it was necessary to hold the matter in abeyance
until the shop steward's return since the supervisor had
other matters to take care of and he wanted to conclude
the pending matter. The meeting then continued and
concluded with the supervisor's giving the employee a
disciplinary action notice. The Board majority held:
In agreement with the Administrative Law
Judge, we find that there is nothing in the Supreme
Court's opinion in Weingarten4 which indicates that
an employer must postpone interviews with its em-
ployees because a particular union representative,
here the shop steward, is unavailable either for per-
sonal or other reasons for which the employer is
1150
PACIFIC GAS & EI.ECTRIC COMPANY
not responsible, where another representative is
available whose presence could have been requested
by the employee in the absent representative's
place. Indeed, the Supreme Court was careful to
point out that the exercise by employees of the
right to representation at an interview may not in-
terfere with legitimate employer prerogatives." Cer-
tainly the right to hold interviews of this type with-
out delay is a legitimate employer prerogative. The
fact that "it would not have been a disaster" to
postpone the meeting to await Murphy's return is
therefore immaterial.
N.L.R V J. Weingarrten. Inc., 420 U S 251 (1975)
s Id. at 258
Although the facts in the instant case and the facts in
Coca-Cola Bottling Co. of Los Angeles are somewhat dif-
ferent, I conclude that the Board's underlying rationale is
applicable here. In Coca-Cola Bottling Co. of Los Angeles,
the shop steward was not available at the time of the in-
terview, but the shop steward would have been available
on the next workday. In the instant case, Shop Steward
Lees was not immediately available at the time of the in-
terview, but Lees would have been available that day
within the time that it took to contact him and furnish
transportation to Lees for the 20-minute drive to the
onsite facility.
As the Board majority indicated in Coca-Cola Bottling
Co. of Los Angeles the employer therein was not required
to postpone its interview with the employee because a
particular union representative was not available at the
time of the interview. The Board pointed to the fact that
the Supreme Court had stated in its Weingarten decision
that "the right to representation at an interview may not
interfere with legitimate employer prerogatives."
The question presented here basically is: Does an em-
ployee have the right under Section 7 of the Act not
only to request that a union representative be present at
an interview with his employer, when the employee has
reasonable grounds to believe that the matters to be dis-
cussed may result in his being the subject of disciplinary
action, but also does the employee in those circum-
stances also have the right to choose and designate who
the union representative will be.
If an employee has such a statutory right in those cir-
cumstances to choose and designate who the union rep-
resentative will be, then the Respondent has violated
Section 8(aX)(1) of the Act since it is clear from the evi-
dence that Green desired to have Shop Steward Lees,
rather than Shop Steward Sell, as the union representa-
tive at his interview on January 25, 1978. On the other
hand, if the Act does not vest such an inherent right in
the employee under such circumstances, then there is no
violation in this case and the General Counsel's com-
plaint should be dismissed.
Of course, I am not unmindful of the fact that Green
himself was a union shop steward. However, Green was
also an employee, and I conclude that Green had no less
of a statutory right to have union representation than
any other employee. As indicated above, the question re-
mains as to whether Green had the statutory right to
designate who the union representative would be at his
interview.
It seems to me that a union should have the preroga-
tive to select its own shop stewards who are to provide
union representation to employees who request it in
those circumstances. Here the Union had selected Sell as
one of its shop stewards. Sell, along with Green, was one
of the Union's shop stewards at the onsite facility. Sell
was present at both the early morning and late morning
interviews of Green on January 25, 1978. I conclude that
Sells' presence as a shop steward and a union representa-
tive fulfilled the statutory requirements as enunciated by
the Supreme Court in its Weingarten decision. Particular-
ly in light of the Board's decision in Coca-Cola Bottling
Co. of Los Angeles, I conclude that the Act does not vest
a right in an employee to select and choose who will be
the union representative in those circumstances.
To find that Sell was an inadequate or improper union
shop steward in providing union representation to em-
ployees would have the effect of nullifying the Union's
choice of Sell as a union shop steward. Such a decision
would render Sell totally ineffective in his Union office.
Sell would have a title but no functions to perform in
providing union representation.
It will be remebered that Sell still held the union office
of shop steward at the time of the hearing on September
12, 1978-more than 7 months after the interview of
Green on January 25, 1978.
If a union became dissatisfied with its chosen shop ste-
ward in the performance of his duties, then it would
seem to be a matter for the union to decide as to wheth-
er to remove the shop steward and to appoint someone
else. In this case, the Union has chosen not to do so.
Thus, it should be assumed that the Union here is satis-
fied with the performance of Sell as a shop steward.
I find nothing in Weingarten which requires that a
judgment be made regarding the adequacy or the propri-
ety of the union representation furnished in such inter-
views. Union representation was provided here to Green
by a duly appointed union shop steward. The Board's
decision in Coca-Cola Bottling Co. of Los Angeles suggests
that an employee does not have a right to delay his inter-
view so he can get a particular representative whom he
wants to be present.
After considering all of the foregoing and the argu-
ments advanced by the counsel for the General Counsel
and the attorney for the Respondent in their respective
briefs, I conclude that a preponderance of the evidence
does not establish the unfair labor practices alleged in the
General Counsel's complaint. Therefore, I shall recom-
mend to the Board that the complaint be dismissed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce 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 has not engaged in the unfair labor
practices alleged in the General Counsel's complaint in
1151
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this proceeding for the reasons which have been set forth
above.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record in this proceeding,
and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of he National Labor Relations Board, the find-
ORDER'
It is hereby ordered that the complaint in this proceed-
ing be dismissed in its entirety.
ings, conclusions, and recommended Order herein shall, as prosided in
Sec. 102.4 of the Rules and Regulations. be adopted by the Boald and
become its findings. conclusions, and Order, and all objections thereto
shall be deemed ;aived for all prposes
1152