Pacific Telephone and Telegraph Company

National Labor Relations Board - Board Decisions

Jul 20, 1982

262 N.L.R.B. 1048 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pacific Telephone and Telegraph Company and
Richard Ebojo and George Flores. Cases 32-
CA-852-1 and 32-CA-852-2
July 20, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS,
ZIMMERMAN, AND HUNTER
On October 23, 1978, Administrative Law Judge
Earldean V. S. Robbins issued the attached Deci-
sion in this proceeding. Thereafter, the Respondent
filed exceptions and a supporting brief, and the
General Counsel filed a brief in answer thereto.
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 her recommended Order as
modified. 1
We agree with the Administrative Law Judge's
conclusion that the Respondent violated Section
8(a)(l) by refusing to inform employees Ebojo and
Flores, or Green, their union representative, of the
nature of the matter being investigated, as well as
by refusing to allow them consultation with Green
before their interviews.2 The Administrative Law
Judge correctly found that, under the Board's deci-
sion in Climax Molybdenum Company, a Division of
Amax Co.. Inc.,3 employees have a Section 7 right
to consult with their representative before any in-
terview to which Weingarten4 rights attach. She
further found that, for the right to prior consulta-
tion to have any meaning, the employee and his
representative must have some indication of the
matter being investigated for, without it, there is
nothing about which to consult.
Our dissenting colleague disagrees with the
Board's holding in Climax, and would find no right
to prior consultation and, therefore, no obligation
on the part of an employer to inform employees as
to the subject of the investigation. He views
Climax as an unwarranted extension of the Su-
preme Court's decision in !Weingarten and inconsist-
ent with the Court's admonition that the right to a
representative should neither transform the inter-
view into an adversary proceeding nor interfere
I The recommended Order and Notice have been modified to include
the traditional language used by the Board to order reinstatement and
backpay.
2 Since the Administrative Law Judge discredited Flores' testimony
that Green sought to consult with Flores before his interview. we would
not find that the Respondent unlawfully refused to allow Flores to con-
sult with Green.
3 227 NLRB 1189 (1977), enforcement denied 584 F.2d 360 (10th Cir.
1978).
4 N.LR.B. v. J. eingarten, Inc., 420 U.S. 251 (1975).
262 NLRB No. 127
with legitimate employer prerogatives We are un-
persuaded.
In Climax,5 the Board held that the Weingarten
right encompassed the right of an employee to
confer with his representative before any interview
which the employee reasonably fears could result
in discipline. The Board reasoned that the Weingar-
ten right is ineffective without prior consultation
since the representative is precluded from perform-
ing his envisioned role as a "knowledgeable" repre-
sentative. Prior consultation, and the "knowledge"
which results therefrom, enables the representative
to "assist the employer by eliciting favorable facts
and save the employer production time by getting
to the bottom of the incident." ~ At the same time,
it enables the representative to counsel and assist
the employee who may be "too fearful or inarticu-
late to relate accurately the incident being investi-
gated."7 As the Board stated in Climax,
"... knowledge is a better basis than ignorance
for the successful carrying on of labor-management
relations." Also the representative can provide the
"aid for protection" which the employee seeks. For
these reasons, the Administrative Law Judge cor-
rectly found that the Respondent violated Section
7 by refusing to inform the employees of the nature
of the matter being investigated. If the right to
prior consultation, and, therefore, the right to rep-
resentation, is to be anything more than a hollow
shell, both the employee and his representative
must have some indication as to the subject matter
of the investigation.
Contrary to our dissenting colleague, we view
Climax and our decision herein to be fully consist-
ent with, and required by, the Weingarten Court's
interpretation of Section 7. Indeed, the act of "con-
sultation" is no less "concerted activity for mutual
aid or protection" than the act of "representation"
5 In denying enforcement of the Board's decision in Climax, the Court
stated that "the NLRB has enlarged upon the Weingarten holding to the
extent that it includes pre-interview situations," and did "not believe that
Wingarten can be interpreted so broadly." We believe, however, that the
Court's decision in Climax is readily distinguishable from the instant case.
First, the Court found that no request for representation was made by the
enmployees involved, although they had 17-1/2 hours between "sum-
inons" and interview to do so and could have consulted on their own
time; that the employees, in fact, expressed no desire to have representa-
tion: and that public policy would not have been served by the union's
admitted intention to advise the employees not to cooperate with their
employer. In this case, on the other hand, iot only did the questioned
employees directly make a request for both information and representa-
tion to the Respondent, they also asked their union representative, as the
Administrative Law Judge found, "what was going on? Green said that
he did not know, he had received an unexplained summons also but he
would get some information." EboJo and Flores created an express
agency relationship for purposes of information between themselves and
Green at the point when Green became their "emissary," going beyond
that of the Union's formal status.
6 420 U.S. at 263.
7Id.
1048
PACIFIC TELEPHONE AND TELEGRAPH COMPANY
itself.8 It is likewise activity aimed at countering
employer action which threatens the employee's
terms and conditions of employment. Moreover, it
need not interfere with legitimate employer prerog-
atives any more than the act of representation.
When faced with an employee's insistence on con-
certed action, the employer is still free to reject the
collective course and forgo the interview. Further,
the employer controls the manner, form, and
timing of its investigatory and disciplinary process
and can take steps to protect its legitimate interests,
while at the same time giving due regard to the ex-
ercise of Section 7 rights.
Nor does a requirement of prior consultation and
information regarding the matter being investigated
present any greater possibility of transforming the
interview into an adversary proceeding. The em-
ployer, under Weingarten, has no obligation to bar-
gain with the representative and "is free to insist
that he is only interested, at that time, in hearing
the employee's own account of the matter under
investigation." 9
We emphasize that our construction of Section 7
does not, as our dissenting colleague suggests, re-
quire that an employer's investigatory or disciplin-
ary process take on attributes even remotely akin
to "full-scale criminal proceedings." All Climax re-
quires is that, as a function of an employee's right
to engage in concerted activity for mutual aid or
protection, a preinterview consultation with his
Weingarten representative be permitted. This con-
sultation need be nothing more than that which
provides the representative an opportunity to
become familiar with the employee's circum-
stances. To require that the employer inform the
employee as to the subject matter of the interview
does not dictate anything resembling "discovery."
The employer does not have to reveal its case, the
information it has obtained, or even the specifics of
the misconduct to be discussed. A general state-
ment as to the subject matter of the interview,
which identifies to the employee and his repre-
sentative the misconduct for which discipline may
be imposed, will suffice.1 0
Our dissenting colleague may feel that less
chance for "obstructionist tactics" and "interfer-
ence with employer prerogatives" would exist if
both the employee and representative were kept
s Member Fanning views "prior consultation" as being neither differ-
ent from, nor superior to, the right to representation itself. Rather, con-
sultation is merely an "aspect of that function which enables the repre-
sentative to fulfill his role." See Member Fanning's concurring opinion in
Climax.
9 420 U.S. at 260. Cf. Southwestern Bell Telephone Company, 251 NLRB
612 (1980), enforcement denied 667 F.2d 470 (5th Cir. 1982). See also
Texaco, Inc., 251 NLRB 633 (1980), enfd. 659 F.2d 124 (9th Cir. 1981).
'o Here, the Respondent stated only that there was a "problem" in-
volving two installers
unprepared and in the dark regarding the subject of
the interview I and, a fortiori, a lesser chance if no
representative were provided at all. What our col-
league chooses to ignore is that the construction of
Section 7 affirmed by the Supreme Court in Wein-
garten represents a balance between employer "pre-
rogatives" in investigating and disciplining miscon-
duct and the right of employees to band togcther
when their terms and conditions of employment
are threatened by those "prerogatives." The weight
of an employer's investigatory machinery against
the isolated employee is an imbalance which Sec-
tion 7 was designed to eliminate and one which we
cannot ignore. 2 As with the right to representa-
tion itself, access before the interview to a knowl-
edgeable representative who can counsel and aid
the employee as to the accusation in hand, as pro-
vided by Section 7, is a proper balance between the
rights of employers and their employees "read in
light of the mischief to be corrected and the end to
be attained." 13
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, as modi-
fied below, and hereby orders that the Respondent,
Pacific Telephone and Telegraph Company, Oak-
land, California, its officers, agents, successors, and
assigns, shall take the action set forth in said rec-
ommended Order, as so modified:
1. Substitute the following for paragraph 2(a):
"(a) Offer George Flores and Richard Ebojo im-
mediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their se-
niority or any other rights or privileges previously
enjoyed, and make each of them whole for any loss
I' This contention is speculative and, at best, dubious. As the Board
noted in Climax, it is just as plausible that lack of consultation would
"strongly incline an employee representative to those obstructionist tac-
tics as a precautionary means of protecting employees from unknown
possibilities." We also note that, given an interview conducted in due
regard to Sec. 7 rights, an employee who refuses to cooperate acts at his
peril, forgoing any possible benefit which could be derived therefrom.
"t Here, the interview was conducted by security representatives The
Weingarten Court noted:
There has been a recent growth in the use of sophisticated tech-
niques-such as closed circuit television, undercover security agents,
and lie detectors-to monitor and investigate the employees' conduct
at their place of work ... These techniques increase not only the
employees' feeling of apprehension, but also their need for experi-
enced assistance in dealing with them. Thus often . . . an investiga-
tive interview is conducted by security specialists; the employee does
not confront a supervisor who is known or familiar to him, but a
stranger trained in interrogation techniques. [420 U.S. at 265, fn. 10.1
This is no less true today.
I3 420 U. S. at 262, citing N..LR.B. v. Hearst Publications Inc., 322 U.S.
III (1944).
1049
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of earnings he may have suffered by reason of his
suspension and discharge, plus interest."
2. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER HUNTER, dissenting:
Relying on the Board's decision in Climax Mo-
lybdenum Company, a Division of Amax, Inc.,14 the
Administrative Law Judge concluded, and my col-
leagues agree, that Respondent violated Section
8(a)(1) of the Act by refusing to allow two em-
ployees to consult with their union representative
prior to investigatory interviews which they rea-
sonably believed would result in disciplinary
action, and by refusing to inform the employees or
their union representative, upon request, of the
nature of the alleged misconduct that prompted the
investigatory interviews. Since I believe Climax
was wrongly decided and represents an unwarrant-
ed interference with legitimate employer preroga-
tives, I dissent from my colleagues' decision.
The facts, as more fully set forth by the Admin-
istrative Law Judge, are as follows. On February
28, 1978, installer/repairmen Richard Ebojo and
George Flores were called in from the field and or-
dered to report to Respondent's 21st Avenue
garage. Arriving separately, they each asked Wil-
liam Stapp, Respondent's customer service man-
ager, the reason for their summons. According to
both employees, Stapp refused to give a reason but
asked each employee if he wanted union represen-
tation. They both said "yes" and were informed
that a steward had already been called. According
to Stapp, he informed both employees that they
had been called in regarding an incident the previ-
ous week and that they were now waiting for the
union steward to arrive. Stapp admitted that both
employees requested additional information but
that he had refused to respond to their request.
When Chief Union Steward Robert Green ar-
rived, Ebojo and Flores asked him what was going
on. Green told them that he did not know; he then
went to see Stapp. Green testified that he received
no answers from Stapp. Stapp testified that he told
Green there was a "problem" regarding two in-
stallers and then directed him to an office where
Jerome Helmuth, security representative, and John
Milosovich, customer service manager, were wait-
ing. Stapp then went to get Flores. Flores testified
that Green returned to the area where he and
Ebojo were waiting. He also testified that when
Stapp came to get Flores for the interview, Green
asked to speak to Flores, but Stapp refused that re-
quest. The Administrative Law Judge did not
14 227 NLRB 1189 (1977), Members Penello and Walther dissenting,
enforcement denied 584 F._d 360 (10th Cir. 1978).
credit Flores' testimony that Green made any such
request.
During Flores' interview, Milosovich stated that
he had observed Flores carrying a telephone into
Ebojo's house during working hours on February
20. Flores denied installing a telephone there but
admitted installing a "modular connecting block"
to Ebojo's telephone line. Upon the conclusion of
the interview, Flores left and Stapp went to get
Ebojo. Around that time, Green said he wanted to
talk to Ebojo, but Helmuth said no, it would
jeopardize the investigation. Green did not pursue
this request. During Ebojo's interview, Milosovich
asked Ebojo if Flores had installed a telephone at
Ebojo's house on February 20. Ebojo admitted that
Flores had fixed some wire but denied that Flores
had installed a telephone. Ebojo claimed that he
had only one telephone and that was an antique
set. 15
Upon their refusal to sign a statement, Stapp in-
formed both employees that they were suspended
pending dismissal. On March 6, 1 week later,
Flores and Ebojo were again summoned to the
garage, whereupon Stapp discharged them for un-
authorized installation of equipment as well as for
falsification of timesheets, an allegation which had
been mentioned during Flores', but not Ebojo's, in-
terview on February 28.
The Administrative Law Judge found that,
under N.L.R.B. v. J. Weingarten, Inc.,' 6 Flores and
Ebojo had the right to insist on the presence of a
union representative at interviews which they rea-
sonably believed would result in disciplinary
action, and that under the Board's decision in
Climax they had the right to prior consultation
with their union representative. She further found
that they also had a right to be informed prior to
the interview of the nature of their alleged miscon-
duct because such a right "is inherent in the right
to prior consultation." She reasoned as follows:
The right to prior consultation has no mean-
ing unless the employee and his union repre-
sentative know the misconduct of which he is
accused. Without such knowledge, there is
nothing about which to consult. This is par-
ticularly true where, as here, there had been
no previous confrontation or indication of em-
ployer displeasure. It is impossible under these
circumstances for the union representative to
"learn the [employee's] version of the events
and to gain a familiarity with the facts" which
the Board determined in Climax to be an inte-
'l The record indicates that the installation of such a telephone with-
out special authorization violated Respondent's work rules.
'6 420 U.S. 251 (1975).
1050
PACIFIC TELEPHONE AND TELEGRAPH COMPANY
gral part of the right to representation enunci-
ated in Weingarten. As the Board stated in
Climax "Knowledge is a better basis than ig-
norance for the successful carrying on of
labor-management relations."
Thus, since she found that Respondent refused to
apprise Flores, Ebojo, or their union representa-
tive, upon request, of the nature of the alleged mis-
conduct prior to the interviews, and also refused to
permit the union representative to consult with
Ebojo prior to his interview, the Administrative
Law Judge found that by such conduct Respond-
ent violated Section 8(a)(1).
As I indicated previously, I do not agree with
the underlying rationale of Climax and therefore I
would not find Respondent's conduct violative of
Section 8(a)(1). In Climax, the Board majority de-
termined that, if a union representative is to repre-
sent employees effectively and be "knowledgeable"
in eliciting the facts, as suggested by the Supreme
Court in Weingarten, 7 those objectives would
more readily be achieved if the representative had
an opportunity to consult with the employee be-
forehand. The Board majority stated:
These considerations indicate that the repre-
sentative's aid in eliciting the facts can be per-
formed better, and perhaps only, if he can con-
sult with the employee beforehand. To pre-
clude such advance discussion, as our col-
leagues would, seems to us to thwart one of
the purposes approved in Weingarten. Nothing
in the rationale of Weingarten suggests that, in
its endorsement of the role of a "knowledge-
able union representative," the Supreme Court
meant to put blinders on the union representa-
tive by denying him the opportunity of learn-
ing the facts by consultation with the employ-
ee prior to the investigatory-disciplinary inter-
view. Knowledgeability implies the very oppo-
site. The right to representation clearly em-
braces the right to prior consultation. [Climax,
supra at 1190.]
The dissenting opinion, with which I agree gen-
erally, submitted that at no time did the Supreme
Court indicate that the right to representation en-
compasses a right to prior consultation, and, more-
over, that the Court's definition of a "knowledge-
able union representative" was different from that
of the Board; thus, according to the dissent, the
employee has a right to a union representative who
is "generally knowledgeable about grievance reso-
lution-not necessarily one who is completely
versed with the employee's particular version of
' 420 U.S. at 263.
the events .... " 18 The dissenters also argued
that, although the Court in Weingarten was con-
cerned with balancing the rights of employers and
employees, the Board was now establishing an im-
balance in favor of unions who "may view all such
interviews as adversarial" and may bring "pres-
sures to bear on an employee to withhold the
facts."' 9 Finally, the dissenters argued that, even if
a right to prior consultation could be inferred from
Weingarten, it would vest in the employee, not the
union representative; thus, they would find no vio-
lation in Climax in any event, since it was the
union representative and not the employees who
requested the prior consultation.2 0 The Tenth Cir-
cuit denied enforcement of the Board's decision,
concluding that Weingarten could not be construed
so broadly as to cover the situation presented in
Climax.2 1
My disagreement with my colleagues derives pri-
marily from the following passage in the Supreme
Court's decision:
A knowledgeable union representative could
assist the employer by eliciting favorable facts,
and save the employer production time by get-
ting to the bottom of the incident occasioning
the interview. Certainly his presence need not
transform the interview into an adversary con-
test. 22 [Emphasis supplied.]
In my view, by requiring prior consultation upon
request, the Board encourages the very change in
the essential nature of the interview that troubled
the Supreme Court. Decisions such as Climax and
i' Id. at 1193.
' Id. at 1193.
ao The majority answered theta arguments by stating. inter alia. that
greater "knowledgeability" would not alter the nature of the Interview;
that a union inclined to use obstructionist tactics could do so at the inter-
view itself and may in fact be more inclined to do so if there is no prior
consultation; and that the union must haie the right to prior consultation
in order to inform the employee of his rights to representation In my
view, the majority's response is at once speculative and conclusory.
t ' The circuit court noted that under 14inrgartre it is the employee
who must request representation and pointed out that neither employee in
Climax manifested any interest in consulting swith his union representative
prior to the investigatory interview, even though 17-1/2 hours passed be-
tween the time they were advised of the planned ilvestigation and the
time it actually occurred. Also noting that under Weingotren the right to
union representation may not interfere with legitimate employer preroga-
tives, the cirucit court found that the umion's admitted policy of urging
employee members not to cooperate with investigator2 interviews was
directly contrary to the primary factfinding purpose of such interviews.
Accordingly, the court concluded that, in the ci-cumnstances, prior con-
sultation would have interfered vwith legitimate employer prerogatives
My colleagues find that the court's declsion in Clima. is 'readily dis-
tinguishahle." primarily on the basis Ihat, unlike the employees ii Climax
who made no request for union repiesentation, Flores and Etblo nmade a
request for both information and represcntatiln and asked their union
representative "what was going in " Esen granting that the facts here
differ somewhat from those presented In Clmnia x, I believe there is no
basis in Weingarten for the propositieon that conslulation and notice of the
charges is mandated whatever the particular fictu.ai context may be
22 420 U.S. at 263
1051
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the instant case set the stage for a change in the
role of the union representative from that of fact-
finder; i.e., one who would "assist the employer by
eliciting favorable facts," to that of counsel, who
would assist his "client," the employee, by arguing
the facts presented in private by the employee.
Since such a result is clearly contrary to the under-
pinnings of the Supreme Court's holding in Wein-
garten, I cannot join my colleagues in the majority
in this decision.23
For much the same reasons, I cannot join in
holding that Weingarten contemplates a "right" to
be informed in advance of the subject matter of the
investigatory interview, whether such a right be in-
herent in the "right" to prior consultation (which I
reject) or whether it be viewed as an independent
right. Not only does such a right have the same
potential for transforming investigatory interviews
into formalized adversary contests with all the at-
tributes of full-scale criminal proceedings, it has the
equally undesirable potential of interfering with le-
gitimate employer prerogatives. I believe that for
employers to conduct their businesses efficiently,
they must be allowed the freedom to control the
manner of conducting their investigatory inter-
views, so long, of course, as they comport with the
requirements of Weingarten as these are properly
interpreted by the Board. As Respondent pointed
out in its brief, in most cases employers will rou-
tinely give the affected employee and the union a
statement of the nature of the alleged misconduct.
Nevertheless, there will be situations where an em-
ployer will have legitimate reasons for withholding
such a statement until the start of the interview. In
those situations, requiring the statement may actu-
ally hinder the investigation and impede the search
for the truth. In my view, such a situation arose
here. Faced with the fact that two employees were
implicated together in the alleged misconduct, Re-
spondent wished to prevent them from coordinat-
ing their stories in advance. Indeed, in the instant
case Respondent explicitly stated to the union rep-
resentative its concern that consultation between
him and the employees would "jeopardize" its in-
vestigation. Surely an employer's wish to carry out
his investigation without being unduly impeded is
not unreasonable, nor, I might add, is it prejudicial
to an honest employee. 24
Finally, even if my colleagues would have it
that, as a matter of fleshing out the Weingarten
23 Another factor, though less significant, in my decision is the likeli-
hood that a requirement of prior consultation will delay the factfinding
process and cut into production time, which is also contrary to the Su-
preme Court's objectives.
24 Important considerations such as the need to ensure the safety or
security of his facilities or of his personnel may well mandate that an em-
ployer bring his investigation to a speedy conclusion.
right to representation, the Supreme Court left to
the Board's discretion questions such as prior con-
sultation, notice, and the like, I believe that there
are compelling policy reasons why the Board
should not go beyond the Weingarten holding.
Thus it seems clear to me that employees and em-
ployers have a mutually strong interest in ensuring
that discipline is not predicated on anything less
than a full and timely exposition of all the relevant
facts, and often an important aspect of such a full
investigation is the face-to-face interview. It seems
equally clear that to the extent this Board impedes
an employer's investigation of an incident by im-
posing additional requirements that turn an inter-
view into a procedural minefield, we may well suc-
ceed only in persuading employers that the better
course is to dispense with the interview altogether.
I submit that such a result serves no party's inter-
est, least of all that of the employee. Indeed, the
employee may well find himself disciplined with no
chance in a nonadversary setting to tell his side of
the story, either on the merit of the allegations
with which he is confronted, or in mitigation of the
punishment which may be levied. Obviously, such
a result would unnecessarily hurt the employee and
be counterproductive to the protections afforded
by the Weingarten decision.
In the final analysis, adequate representation for
the employee who reasonably fears discipline, as
well as for the entire bargaining unit, is assured by
the presence of the union representative at the
actual interview. In the instant case, a union repre-
sentative was present at all times during Flores'
and Ebojo's interviews. Nothing more is required
under Weingarten, and nothing more should be re-
quired of an employer by the Board. Accordingly,
I dissent from the finding of a violation and would
dismiss the complaint in its entirety.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered ts to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through
sentatives of their own choice
repre-
1052
PACIFIC TELEPHONE AND TELEGRAPH COMPANY
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT refuse to permit employees to
consult with their union representatives prior
to investigatory interviews which they reason-
ably believed would, and which did, result in
disciplinary action; or refuse to inform em-
ployees or their union representatives, upon
their request, of the nature of the alleged mis-
conduct which prompted such investigatory
interviews.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights under Section
7 of the Act.
WE WILL offer George Flores and Richard
Ebojo immediate and full reinstatement to
their former jobs or, if those jobs no longer
exist, to substantially equivalent positions,
without prejudice to their seniority or any
other rights or privileges previously enjoyed
and wE WILL make each of them whole for
any loss of earnings they may have suffered by
reason of their suspension and discharge, plus
interest.
PACIFIC TELEPHONE AND
GRAPH COMPANY
TELE-
DECISION
STATEMENT OF THE CASE
EARLDEAN V. S. ROBBINS, Administrative Law Judge:
This case was heard before me in Oakland, California, on
September 11, 1978. The charge in Case 32-CA-852-1
was filed by Richard Ebojo, an individual, and a copy
thereof was served on Pacific Telephone and Telegraph
Company, herein called Respondent, on April 14, 1978.
The charge in Case 32-CA-852-2 was filed by George
Flores, an individual, and a copy thereof was served on
Respondent on April 14, 1978. The consolidated com-
plaint, which issued on June 30. 1978, alleges that Re-
spondent violated Section 8(a)(1) of the National Labor
Relations Act, as amended, herein called the Act.
The basic issue herein is whether Respondent violated
the Act by refusing to inform Ebojo and Flores, or their
union representative, of the nature of the charges being
investigated and refusing to allow them prior consulta-
tion with their union representative regarding such
charges.
Upon the entire record, including my observation of
the witnesses, and after due consideration of the briefs
filed by the parties, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a California corporation, with an office
and place of business located in Oakland, California, is
engaged in the operation of a telephone and telegraph
system. Respondent, in the course and conduct of its
business operations, during the 12-month period preced-
ing the issuance of the complaints herein, purchased and
received goods or services valued in excess of $50,000,
which originated outside the State of California.
The complaint alleges, Respondent admits, and 1 find
that Respondent is now and 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(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that the Communications Workers of America, Local
9415, AFL-CIO, herein called the Union, is now, and
has been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
IIn. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Respondent is party to a collective-bargaining agree-
ment with the Union which provides that, at the request
of the employee, a union representative may be present
at any meeting between a representative of the Company
and an employee in which discipline is to be announced.
A statement of policy issued to department heads sets
forth Respondent's interpretation as to its obligation to
permit union representation at disciplinary and investiga-
tory interviews, and to permit prior consultation between
the employee and the union representative. This pro-
ceeding arose out of investigatory interviews involving
employees George Flores and Richard Ebojo.
Flores and Ebojo were employed by Respondent from
September 1971 and June 1968, respectively, until they
were discharged on March 6, 1978.' At the time of their
termination they were both classified as installer/re-
pairmen and worked under the immediate supervision of
Ralph Owens, plant service foreman. Owens reported to
William Stapp, customer service manager, installation.
On Tuesday, February 28. when they were in the field
working, both Flores and Ebojo were ordered to report
to Respondent's 21st Avenue garage. It is not disputed
that such a summons was an unusual occurrence. Flores
and Ebojo arrived at the garage separately. In individual
conversations with Stapp they both inquired why they
had been summoned. According to them, Stapp refused
to tell them, but asked if they wanted union representa-
tion. They both said yes, and Stapp informed them that a
union steward had been summoned. According to Stapp,
he told each of them that he had been called in regard-
ing an incident which occurred the previous week. He
admits that each of them requested additional informa-
l All dates herein will be in 1978 unless otherwise indicated.
1053
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion, which he refused to give. Stapp further testified
that he volunteered the information that the union ste-
ward had been summoned.
Shortly thereafter Chief Union Steward Robert Green
arrived. In the meantime, though placed in separate of-
fices, Flores and Ebojo had each noticed the other's
presence and discussed their summons to the garage, but
neither of them knew why. When Green arrived, they
asked him what was going on. Green said he did not
know, he had received an unexplained summons also but
he would get some information.
Green then went to Stapp and asked what was going
on. According to Green this occurred in an office in the
presence of John Milosovich, customer service manager,
and Jerome Helmuth, security representative. According
to Stapp, it occurred in the driveway between the of-
fices. Green testified that he received no answer. Stapp
testified that he told Green that there was a problem re-
garding two installers and directed Green to an office
where Helmuth and Milosovich were waiting. Stapp
then went to Flores and escorted him to that office. Both
Flores and Ebojo testified that Green returned to the
office where they were waiting and said that Stapp and
Milosovich would not tell him what was going on, be-
cause, they claimed, it would jeopardize the investiga-
tion. Green testified that he does not remember returning
to the office where Flores and Ebojo were waiting.
Flores testified that Stapp came in and escorted him
and Green to an office where Helmuth and Milosovich
were present. According to Flores, as they walked over
to this office, Green asked Stapp if he could speak with
Flores. Stapp said no. However, Stapp denies this con-
versation, Green does not recall it, and Flores did not
mention this in his prehearing affidavit dated April 27,
1978, although he admits that the investigator to whom
he gave the statement specifically asked him if he or
Green ever requested an opportunity to meet alone. In
the circumstances, I do not credit Flores' testimony that,
prior to his interview, Green requested an opportunity to
meet with him alone.
As the interview with Flores proceeded, Flores was
questioned as to why he had been at Ebojo's house on
the afternoon of February 20 during working hours. Mi-
losovich stated that he had observed Flores carrying an
instrument (telephone) into Ebojo's house. Flores denied
this but admitted that he had stopped by Ebojo's house
on his coffeebreak, 2 and at Ebojo's request had installed
a modular connecting block 3 to Ebojo's telephone line.
He had no installation order for this service nor did he
report it to the business office.4
2 It is undisputed that installers may stop for a coffeebreak within a
reasonable radius of their work assignment. According to Flores, his stop
at Ebojo's house took him only two blocks off his route. However. in his
report to his superior, Stapp described the distance as about 20 blocks
from where Flores' timesheet indicated he should have been.
3 A modular connecting block is a 2- by 2-inch device that connects
the telephone to the outside telephone wires leading into the building.
I It is undisputed that a repairman already at a location may install
such an item for safety purposes (according to Flores, there was a bare
wire where Ebojo wanted him to install the block) without having a
service order. Stapp testified that if it involved repair work, the repair-
man should fill out a repair ticket and, if it involved an installation, he
should call the business office and get a service order issued. He further
Some reference was also made to Flores' timesheets6
and Green examined the timesheets. At this time, accord-
ing to Green's undenied testimony, he explained that
sometimes an installer gets ahead of the work and the ti-
mesheet is not always accurate.
According to Green, at the conclusion of the Flores
interview, he said he wanted to talk to Ebojo. Helmuth
said no, it would jeopardize the investigation. Green said
okay and did not pursue the matter further. Milosovich
and Helmuth deny hearing such a request. So does
Stapp.
Although Green testified that Stapp was present when
he made the request, he is uncertain as to whether Flores
was present. He also testified that the request was made
after the conclusion of the Flores interview and before
the Ebojo interview commenced. It is undisputed that, at
the conclusion of the Flores interview, Stapp left with
Flores and returned with Ebojo. Thus it is possible that
Flores and Stapp had left or were leaving when Green
made the request and thus did not hear the request. This
is particularly true since Helmuth allegedly answered
even though Stapp seemed to take the initiative in con-
ducting the interviews. At the conclusion, Helmuth su-
marized the evidence.
I credit Green that he requested to meet with Ebojo
alone and that this request was denied. He impressed me
as an honest, reliable witness who was attempting to
answer questions candidly. He is still in Respondent's
employ and at the time of the hearing was assigned to a
temporary supervisory position which admittedly might
or might not lead to a permanent supervisory position.
Following the Flores interview, Ebojo was brought
into the office. Milosovich asked him about Flores' visit
to his home on February 20. Ebojo admitted that Flores
had been there. Stapp asked if Flores had installed a tele-
phone there. Ebojo said no. Milosovich said he saw
Flores carry a telephone into Ebojo's house and that, on
the following day, a capacity reading was obtained fromi
Ebojo's telephone line which indicated that three tele-
phones were in use.6
Ebojo said he had only one telephone, an old 202
subset made in the 1920's or 1930's 7 and suggested that
they accompany him to his house to verify this. Stapp,
Helmuth, and Green did accompany Ebojo to his house
but located only the one instrument. When they returned
to the garage, Flores and Ebojo were asked to sign a
statement. Upon Green's advice, they both refused.
Stapp instructed them to turn in their identification cards
and garage keys and informed them that they were sus-
pended pending dismissal.
On March 6, Flores, Ebojo, and Green were again
summoned to the 21st Avenue garage. Stapp reminded
Flores that, at the time of the February 20 incident, he
had been on final warning for falsification of his time-
testified that if installation of a modular block was the sole item on the
service, there would be a charge to the subscriber.
I Timesheets show the job location, the time spent on a particular job,
and the travel time to the job. Thus, the beginning time for a particular
job would be the completion time of the previous job. The timesaleet
does not show coffeebreaks.
o Ebojo was authorized only one telephone.
It is undisputed that this was not the authorized set.
1054
PACIFIC TELEPHONE AND TELEGRAPH COMPANY
sheet s and informed him that he was being discharge for
falsifying his timesheet of February 20 and for the unau-
thorized installation of equipment in Ebojo's residence.
Ebojo was informed that he was being discharged for
falsification of time reporting on February 21, 9 and for
having the modular connecting block and the 202 subset
installed in his residence without proper authorization.
B. Conclusion
The complaint alleges that Respondent violated Sec-
tion 8 (aX!) of the Act by denying the requests of Ebojo
and Flores to be informed of the purpose of an inter-
view, the subject of which was disciplinary action, and
to engage in consultation with their union representative
prior to the commencement of such interviews. Respond-
ent contends that the facts do not support this contention
and that, even if they did, this theory of a violation is an
unwarranted extension of N.L.R.B. v. Weingarten, Inc.,
420 U.S. 251 (1975), and Climax Molybdenum Company,
a Division of Amax, Inc., 227 NLRB 1189 (1977).
In Weingarten, the Surpeme Court upheld the Board's
determination that, under Section 7 of the Act, an em-
ployee has the right to insist on the presence of a union
representative at an interview which the employee rea-
sonably believes will result in disciplinary action.
In Climax, the Board determined that this right en-
compasses the right to prior consultation with the union
representative. In setting forth its rationale, the Board
stated:
. . .[T]he Supreme Court in Weingarten noted:
A single employee confronted by an employer in-
vestigating whether certain conduct deserves dis-
cipline may be too fearful or inarticulate to relate
accurately the incident being investigated, or too
ignorant to raise extenuating factors. A knowl-
edgeable union representative could assist the em-
ployer by eliciting favorable facts, and save the
employer production time by getting to the
bottom of the incident occasioning the interview.
[Weingarten, supra at 262-263.]
Surely, if a union representative is to represent
effectively an employee "too fearful or inarticulate
to relate accurately the incident being investigated"
and is to be "knowledgeable" so that he can "assist
the employer by eliciting favorable facts, and . .
getting to the bottom of the incident," these objec-
tives can more readily be achieved when the union
representative has had an opportunity to consult be-
forehand with the employee to learn his version of
the events and to gain a familiarity with the facts.
Additionally, a fearful or inarticulate employee
would be more prone to discuss the incident fully
and accurately with his union representative with-
out the presence of an interviewer contemplating
Flores had previously beeil suspended three times for falsification of
his time record.
9 On this date Ebojo was observed at his home at 11:45 a.m. He was
observed leaving his home at 12:40 p.m. His timesheet indicates that he
was at a job location until 12 noon and that he took 30 minutes for lunch.
This incident was not mentioned during the February 28 interview.
the possibility of disciplinary action. These consid-
erations indicate that the representative's aid in elic-
iting the facts can be performed better, and perhaps
only if he can consult with the employee before-
hand. To preclude such advance discussion, as our
colleagues would, seems to us to thwart one of the
purposes approved in Weingarten. Nothing in the ra-
tionale of Weingarten suggests that, in its endorse-
ment of the role of a "knowledgeable union repre-
sentative," the Supreme Court meant to put blinders
on the union representative by denying him the op-
portunity of learning the facts by consultation with
the employee prior to the investigatory-disciplinary
interview. Knowledgeability implies the very oppo-
site. The right to representation clearly embraces
the right to prior consultation ....
Here the circumstances of the summons to the garage
certainly gave Flores and Eoojo reasonable cause to be-
lieve that some disciplinary action was being considered
and the interviews did actually result in Stapp recom-
mending their discharge, which recommendation was fol-
lowed. The critical question is whether they had a right
to be informed prior to the interview of the nature of the
alleged misconduct which prompted the interview. I
conclude that the right to be so informed is inherent in
the right to prior consultation.
The right to prior consultation has no meaning unless
the employee and his union representative know the mis-
conduct of which he is accused. Without such knowl-
edge, there is nothing about which to consult. This is
particularly true where, as here, there had been no previ-
ous confrontation or indication of employer displeasure.
It is impossible under these circumstances for the union
representative to "learn the [employee's] version of the
events and to gain a familiarity with the facts" which the
Board determined in Climax to be an integral part of the
right to representation enunciated in Weingarten. As the
Board stated in Climax, ". . . knowledge is a better basis
than ignorance for the successful carrying on of labor-
management relations."
I further find that these employees sought such infor-
mation and were refused. Even crediting Stapp, a mere
response that the interviews would concern an incident
which occurred the previous week is not sufficient infor-
mation. This is particularly true where, as here, the em-
ployees involved worked alone and have regular dealings
with customers, any one of whom might have accused
the employee of anything.
As indicated above, I credit Green that he requested,
and was refused, prior consultation with Ebojo. Re-
spondent argues that, even crediting Green, the fact that
Ebojo and Green nevertheless submitted to the interview
constituted a waiver of such right. I find no merit in this
argument. If one considers simply the failure to pursue
the requests, this is insufficient to support an inference of
waiver. Green had every reason to expect that further
requests would be futile. The previous refusals to give
any information as to the incidents involved clearly indi-
cated that Respondent did not intend to permit any
meaningful consultation.
1055
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nor does the failure of the employees to avail them-
selves of the right under Weingarten to refuse to partici-
pate in the interviews constitute a waiver of their right
to prior consultation. Respondent never informed them
of this right and before inferring that such right has been
waived, it must be shown that the employee acted know-
ingly and voluntarily. Southwestern Bell Telephone Com-
pany, 227 NLRB 1223 (1977). For the reasons set forth
above, it is apparent that these employees did not act
knowingly. Climax also involved a situation where em-
ployees submitted to an interview notwithstanding the
denial of the request for prior consultation. Nevertheless,
the. Board found a violation.
Accordingly, I find that Respondent violated Section
8(a)(1) of the Act by refusing to permit union representa-
tives to consult with Flores and Ebojo prior to investiga-
tory interviews which they reasonably believed would,
and did, result in disciplinary action; and by refusing to
apprise Flores and Ebojo or their union representative,
upon their request, of the nature of the alleged miscon-
duct which prompted such investigatory interviews.
CONCLUSIONS OF LAW
i. Respondent is an employer engaged in commerce
within the meaning of Section 2(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. By refusing to permit employees to consult with
their union representatives prior to investigatory inter-
views which they reasonably believed would, and which
did, result in disciplinary action; and by refusing to
inform employees or their union representatives, upon
their request, of the nature of the alleged misconduct
which prompted such investigatory interviews, Respond-
ent has engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that Respond-
ent be ordered to cease and desist therefrom and to take
certain affirmative action designed to effectuate the pur-
poses of the Act.
Since I have found that Respondent unlawfully refused
to permit Ebojo and Flores prior consultation with their
union representative, and refused to inform them of the
nature of the alleged misconduct which prompted the in-
vestigatory interviews, the General Counsel requests a
reinstatement and backpay remedy. Respondent argues
that, inasmuch as discipline was imposed because of the
misconduct which prompted the investigatory interview
rather than because the employees asserted a right pro-
tected under the Act, a reinstatement and backpay
remedy would be inappropriate, that it would unfairly
penalize the Company and award the employees with an
undeserved benefit. In support thereof, Respondent
argues that, in Climax, the Board did not order that the
oral warnings be removed from the employees' files, nor
was reinstatement ordered in Detroit Edison Company,
218 NLRB 61 (1975), or Mobil Oil Corporation, 196
NLRB 1052 (1972). However, reinstatement and backpay
was ordered in Southwestern Bell Telephone Company,
supra, and revocation and expungement of a disciplinary
layoff notice was ordered in Certified Grocers of Califor-
nia, Ltd., 227 NLRB 1211 (1977).
The Board has not explained its rationale for this vari-
ation in remedy. Climax postdates Weingarten and Mobil
Oil was cited with approval in Weingarten. I conclude
that the better approach is that in Southwestern Bell Tele-
phone and Certified Grocers. If the right to union repre-
sentation at investigatory interviews is the basic right de-
scribed in Weingarten, and if the right to prior consulta-
tion is as essential to effective representation as deter-
mined by the Board in Climax, then one can only con-
clude that such representation, if granted, might possibly
affect the outcome of such interviews. Since Respond-
ent's conduct has caused the uncertainty as to what this
effect would have been, it is only fair that the uncertain-
ty be resolved against Respondent. The status quo
cannot otherwise be restored. Union representation at
this stage would likely be ineffective. The Supreme
Court stated in Weingarten when it rejected Respondent's
contention that representation should be deferred until
the filing of a formal grievance following the imposition
of disciplinary action:
. . . at that point, however, it becomes increasingly
difficult for the employee to vindicate himself, and
the value of representation is correspondingly di-
minished. The employer may then be more con-
cerned with justifing his actions than re-examining
them.
This would seem to be even more likely in the situa-
tion here. Accordingly, it is recommended that Respond-
ent offer Richard Ebojo and George Flores immediate
and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, and make each of them whole for any loss of
pay he may have suffered as a result of his suspension on
February 28, 1978, and his discharge on March 6, 1978,
with interest thereon, to be computed in the manner set
forth in F. W. Woolworth Company, 90 NLRB 289 (1950),
and Florida Steel Corporation. 231 NLRB 651 (1977).' °
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER l
The Respondent, Pacific Telephone and Telegraph
Company, Oakland, California, its officers, agents, suc-
cessors, and assigns, shall:
'0 See, generally, Isis Plumbing & Heating Co., 136 NLRB 716 (1962).
' In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
1056
PACIFIC TELEPHONE AND TELEGRAPH COMPANY
I. Cease and desist from:
(a) Refusing to permit employees to consult with their
union representatives prior to investigatory interviews
which they reasonably believed would, and which did,
result in disciplinary action; and refusing to inform em-
ployees or their union representatives, upon their re-
quest, of the nature of the alleged misconduct which
prompted such investigatory interviews.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the purposes of the Act:
(a) Offer George Flores and Richard Ebojo immediate
and full reinstatement to their former or substantially
equivalent jobs and make them whole for any loss of
earnings they may have suffered by reason of Respond-
ent's discrimination against them in the manner and to
the extent set forth in the section here entitled "The
Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records and reports, social security payment
records, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due and the right of reinstatement under the terms of
this recommended Order.
(c) Post at its facility in Oakland, California, copies of
the attached notice marked "Appendix."' 2 Copies of said
notice, on forms provided by the Regional Director for
Region 32, after being duly signed by Respondent's rep-
resentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director for Region 32, in
writing, within 20 days from the date of this Order, what
steps it has taken to comply herewith.
" In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1057