Roadway Express, Inc.Download PDFNational Labor Relations Board - Board DecisionsDec 14, 1979246 N.L.R.B. 1127 (N.L.R.B. 1979) Copy Citation Roadway Express, Inc. and Van M. Drake and Ed- ward Bailey. Cases 7-CA 13001 and 7 CA-13007 December 14, 1979 DECISION AND ORDER On June 29, 1977, Administrative aw Judge Mor- ton D. Friedman issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge found that Respon- dent violated Section 8(a)(1) of the Act in two sepa- rate incidents involving employees Van Drake and Edward Bailey. For the reasons set forth below, we disagree with his findings that violations occurred with respect to either employee, and, accordingly. we dismiss the instant complaint in its entirety. 1. Emplqoyee Drake: On March 19, 1976. Supervi- sor Denkins noticed that employee Drake was absent from his work station following either the early break or lunch period on the night shift. Denkins and the night terminal operations manager, Bonser, located Drake in the locker room area and directed him to return to work. Drake, apparently irritated at Bonser, later confronted him on the loading dock and threat- ened him with physical harm. Bonser requested that Drake accompany him to an office in the dock area. Drake refused, however, explaining that he would do so when his steward, George Karagozian, could be present.2 Respondent was aware that Karagozian was due to arrive at work in approximately 4 hours, at the commencement of the day shift. Bonser left the dock area, but later returned, accompanied by another su- pervisor, and repeated the earlier request. Drake again refused, reiterating his earlier explanation. Bon- ser then informed Drake that, inasmuch as he would not go to the office as requested, he was to leave the terminal. Drake did so. His part-day suspension and a written warning were later upheld for flagrant dis- obeying of orders. In response to this situation, dur- ing the following week, the Union appointed three i Respondent has excepted to certain credibility findings made by the Ad- ministratie law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are Incorrect Standard Drl Wall Products. Inc. 91 NL.RB 544 (1950). entd 188 F.2d 362 (3d (Cir. 1951). We have carefully examined the record and find no basis lor reversing his findings a amplified below 2 The Adminisiratile Las Judge found that l)rake was a are that (om- mitteeman Page. night-slhill employee was absenl from work that night ROADWAY EXPRESS. INC. employees, including Drake and Morris Blackwell, to serve as alternate committeemen for the night shift. The Administrative Law Judge found that Respon- dent suspended Drake for the remainder of his work shift on March 19 because of Drake's refusal to at- tend the meeting with Bonser in the absence of union representation. Relying on the Supreme Court's hold- ing in N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251 (1975), the Administrative Law Judge further found that, in light of the circumstances in which the meet- ing was proposed, Drake had a reasonable basis to believe that the meeting could result in the issuance of discipline against him, and, therefore, Drake was entitled to the requested representation. The Admin- istrative Law Judge thus concluded that Respon- dent's conduct was in derogation of Drake's Wein- garten rights and a violation of Section 8(a)( 1) of the Act. In reaching his conclusion, the Administrative Law Judge credited Respondent's testimony that its prac- tice was "to isolate any employee on the clock who was giving trouble in order to talk to such employee away from the dock so that there would not be any interruption of the work being performed at the dock." The Administrative Law Judge discounted this practice, however, as the record did not show that employees generally, and Drake specifically., had knowledge of this procedure. We do not consider this lack of knowledge by the employees dispositive of the issue. We note that Respondent could have opted, at the time Drake refused to go to the office, to with- draw its request for an interview and to impose what- ever discipline it thought warranted, and let fuller facts and positions of the parties emerge in whatever grievance procedure, if any, might have been initiated therafter. The Supreme Court in Weingarten. supra. specifically acknowledged an employer's legitimate right to withdraw its request for an investigatory in- terview and proceed in the manner it deems appropri- ate. The Administrative Law Judge found, however, that Respondent suspended Drake not for his pur- ported cursing and threatening of his foreman, but because he refused to obey an order to go to the su- pervisor's office without his shop steward. While an employee in Drake's position could reasonably have believed that the proposed interview might result in disciplinary action, in our view an employer does not first have to assure an employee that his union repre- sentative will be present for the interview in order to induce that employee to leave the plant floor (here the loading dock).' We think it clear that the varying I he disent apparently asserlts that. b i t.lllure summarily and mmedl aitel to mpose discipline on i)ralke al the dock rea, eg . h ordering him oR the premises. Respondent herehy e ldenced an intention t engage D)rake in a l 4 .cing.,ltn Inrier lew %Ae relect thi aIslTimptl.n it the dlssent (( ,nnOllni. 246 NLRB No. 180 1127 DECISIONS OF NATIONAL LABOR RELATIONS BOARD alternatives involved in Weingarten do not readily lend themselves to discussion on the plant floor, par- ticularly if there is any kind of disturbance in pro- gress. As the Administrative Law Judge, whose Deci- sion was adopted by the Board, observed in Choysler Corporation, Hamtramck Assembly Plant, 241 NLRB 1050 (1979), while an employee may make a request for union representation while on the plant floor, and need not repeat the request at the office if the official there is aware of such request, he may not refuse to report to the office as directed. That is true even in this case, for example, where both the Employer and the employee knew that a union representative was not available for several hours, for the preinterview discussion in the office might have resulted in Re- spondent either: (I) agreeing to stay the interview un- til Steward Karagozian arrived; (2) discontinuing the interview permanently; or (3) offering Drake the choice of continuing the interview unaccompanied by a union representative or having no interview at all.4 There are a myriad of reasons why an employer may choose to remove an employee in Drake's situation from its plant floor and, unlike our dissenting colleagues. we shall not attempt to divine an employer's motives for doing so. Moreover, there is no warrant for the dissent's comment that Respon- dent's attempt to get Drake off the plant floor was also an insistence "that Drake submit to the interview alone." And the dissent's supposition that the anticipated meeting between Drake and Bonser would necessarily have a Weingarten interview is further in error. Drake's invocation of his Weingart- en rights had the effect of putting Respondent on notice that, if it intended to engage Drake in an interview. his request for representation would have to be honored. However, if the meeting proposed by Bonser was solely for the purpose of notifying Drake of predetermined discipline, then Respondent's obligation to comply with Drake's request would not have arisen See. e.g.. Amoco Oil Companv. 238 NLRB 551 (1978). On the facts in this record, it is uncertain what the purpose of the requested meeting was to be. Thus. while Drake's request for a representative was proper, there is no evidence to demonstrate that Respondent's obligation to comply with that request had yet matured. ' Our dissenting colleagues argue that the Board in Chrysler. supra, did not adopt the comments of the Administrative Law Judge there which we have outlined above, in essence, because the Board articulated upon another issue at fn. 2 of its Decision in affirming the Administrative Law Judge. However. examination of the Board's Decision in Chrysler, in which Member Jenkins participated, fails to reveal that the Board either disavowed. or found it unnecessary to pass on, the Administrative Law Judge's above-noted discus- sion. Instead, the Board adopted the Administrative Law Judge's rulings, findings, and conclusions without express modification. Hence, we are not as sanguine as our dissenting colleagues that the Board's Decision in Chnrsler does not stand for the proposition we have noted. Moreover, to the extent there is any confusion on the matter, we simply note today that we are expressly adopting the rationale of the Administrative Law Judge in Chrsler as set forth above. We are constrained. however, to comment upon another matter raised by the dissent concerning our reliance on Chrysler. Particularly, the dissent cites the Board's earlier holding in Glonae Plastics Inc., 234 NLRB 1309 (1977), as proof that the Administrative L.aw Judge's comments in Chrysler, which we have noted above, have little legal validity. However, in the absence of a specific disavowal of these comments by the Board in Chorsler, we are at a loss to understand how the Board's earlier Decision in Glomac demonstrates their invalidity. Further, the factual situation in Glomac was far different from that here or in Chrvsler. In Glomac, an employee was summoned to the office of her supervisor for what the Board found was to be a Weingarten interview. She went to the office, but asked that a fellow employee accompany her. Her supervisor, however, refused to conduct the interview in the presence of the coworker and directed the two employees to return to work or to punch out. The two returned to work Shortly thereafter, the supervisor appeared at the employ- On the facts here, we find that Drake properly in- voked his Weingarten rights when initially confronted with Supervisor Bonser's request to accompany him to the supervisor's office. Had Drake gone to the of- fice, and had Respondent proceeded to conduct an investigatory interview in the absence of a union rep- resentative, we would have found that Respondent acted in derogation of Drake's Weingarten rights.5 His refusal to leave the dock area, however, an act that clearly undermined Respondent's right to maintain discipline and order, left him subject to the sanctions Respondent deemed appropriate to impose, in this in- stance a 4-hour suspension. Our interpretation of Weingarten must be tempered by a sense of industrial reality. In Weingarten, it was the Supreme Court's design that, on the one hand, an employee not be compelled to participate in an inves- tigatory interview in the absence of union representa- tion while, on the other hand, exercise of the employ- ee's right may not interfere with legitimate employer prerogatives. The two concepts are not mutually ex- clusive, of course, and we do not believe that preser- vation of the former must necessarily result in the derogation of the latter. Simply stated, we find that an employee's Weingarten rights, with all its atten- dant safeguards, matures at the commencement of the interview, be it on the production floor or in a supervisor's office. If the employer chooses to initiate its investigation in a work area, then it is bound to comply immediately with an employee's request for representation there. If, however, the employer, as here, asks the employee to leave the production area and go to an office or some other location where fur- ther discussion is contemplated, then the employee acts at his or her peril if he or she declines to do so. ee's work station and again requested the employee to report to his office. It was at this time that the employee asked what the specific problem was. and the supervisor responded with the words on which the dissent seizes; i.e., the supervisor indicated that he was not going to "discuss labor problems on the floor." The employee refused to go to the office without a representative being present, and instead went home. The factual distinction between Glo- matc and the episode involving employee Drake is obvious to us, if not to our colleagues. In Glomac, the employee had already left the plant floo)r once. and the employer had already made it clear in the office that it would not discuss the matter at issue with a Weingarren representative present. Thus. when a second interview was proposed after the employee had returned to work, it was clear that an) such interview would be held without a Weingart- en representative being present and hence would be an illegal interview. The employee's refusal to attend this meeting was thus privileged. Here, on the other hand, the purpose of the proposed meeting with Drake was uncertain. and there is no proof that any such meeting would have been held in contra- sention of Drake's Weingarren rights. Thus. Drake could not refuse Respon- dent's request to go to the office. and we see no conflict with our decision here and that in Glomac. Even if the interview conducted under the circumstances described above was "disciplinary," rather than "investigatory." Member Penello would still find that Respondent violated Drake's Sec. 7 rights. See Member Penello's dissenting opinion in Baron Rouge Wlater Works Company, 246 NL.RB 995 (1979), wherein he set forth his view that Sec. 7 grants an employee the right to request the presence of his union representative lt both investigatory and disiciplinary interviews. 1128 ROADWAY EXPRESS. INC Accordingly, we find that, while Drake was entitled to refuse to participate in an investigatory interview in the absence of the requested representative, he was not privileged to ignore Respondent's order to leave the dock area. We therefore dismiss the complaint as to Drake.6 2. Employee Bailey: One week after the incident involving Drake, a similar incident occurred involv- ing employee Bailey. On March 26. Bailey had a con- frontation with Supervisor Denkins concerning his work performance. Anticipating a general disruption at the loading dock where Bailey worked, Denkins requested that Bailey accompany him to the supervi- sor's office to discuss the problem. According to Bai- ley's credited testimony, he explained to Denkins that, because his union representative was not pre- sent, he did not have to attend the meeting.7 After conferring with Bonser and Assistant Terminal Man- ager Ostermyer, Denkins returned to Bailey and di- rected him to complete what work he was doing and then to leave. As he was leaving, Bailey encountered Terminal Operations Manager Bonser and Oster- myer. S Ostermyer asked him what was going on, to which Bailey explained that he was being sent home because he refused to attend the meeting with Den- kins in the absence of union representation. Accord- ing to credited testimony, Ostermyer then suggested, "What about Blackwell?"9 The Administrative Law Judge found that Bailey replied "no" to Ostermyer's suggestion concerning Blackwell and that Bonser then commented, "Well, he's just an alternating com- mitteeman."' ° Bailey indicated he would talk to Stew- ard Karagozian about the matter in the morning. Bai- ley then left. His part-day suspension and a written warning were later upheld for flagrant disobeying of orders. 'At fns. 18 and 19 of their dissent, our colleagues cite several Board Decisions which they contend are dispositive of the issue involving Drake. However, as our colleagues themselves descnbe these cases, it is clear that the cases raised issues which are not present here and, accordingly. no fur- ther comment is necessary regarding them. 'The Administrative Law Judge found that Bailey was aware that his committeeman, Donald Page, had left earlier that evening. While the Ad- ministrative Law Judge noted that Bailey's steward was due to arnve at Respondent's premises within one-half hour after the incident, the record shows he was to arnve 2 to 2-1/2 hours later. I In the eighth paragraph of the section of the Administrative Law Judge's Decision entitled "B. Discussions and Conclusions," the Administrative Law Judge inadvertently stated that as Bailey was leaving he met Ostermyer and Denkins. We find that he apparently intended to state that Bailey encoun- tered Ostermyer and Bonser. 9 As noted, after the Drake incident, the Union had appointed three em- ployees, including Drake and Moms Blackwell, to serve as alternate com- mitteemen for the night shift. 10 In one portion of his Decision. the Administrative Law Judge credited the testimony of Bonser that Ostermyer suggested. "What about Blackwell?" Ostermyer commented to Bailey that Blackwell was an alternate committee- man. Reliance on either Bonser's or Ostermyer's testimony does not dissuade us from our conclusion, infra. that Respondent did not violate Sec. 8(aX I with regard to Baile). Based on the foregoing facts, the Administrative Law Judge concluded that, when Blackwell's name was first raised as Bailey was leaving, Bailey was un- aware that Blackwell was an alternate committee- man. While the Administrative Law Judge conceded that the disposition of the issues surrounding the epi- sode involving Bailey was made more difficult be- cause of the added factor of the presence of alternate representation, he nevertheless concluded that Bai- ley's suspension violated Section 8(a)(1) of the Act. He reasoned that, once Bailey had invoked his Wein- garten rights, Respondent could either conduct the investigation without the interview, or postpone the investigatory interview until the arrival of the re- quested shop steward. Respondent chose neither course and, instead, suspended Bailey. By so doing, according to the Administrative Law Judge, Respon- dent acted in derogation of Bailey's Weingarten rights and consequently violated Section 8(a)(1) of the Act. We disagree. Weingarten speaks of an employee's Section 7 right to union representation during an interview which the employee has reason to believe will result in disciplin- ary action. The Court indicated that the employee's right to "engage . . . in concerted activities . . . for mutual aid or protection" can best be served when an employee who is instructed to participate in such an interview is permitted representation by his bargain- ing agent. Under Weingarten, once an employee makes a valid request for union representation, the employer is permitted one of three options:" (1) grant the request: (2) discontinue the interview: 2 or (3) of- fer the employee the choice of continuing the inter- view unaccompanied by a union representative or having no interview at all. Nowhere in Weingarten does the Court state or suggest that an employee's interest can only be safeguarded by the presence of a specific representative sought by the employee, as op- posed to being accompanied by any union representa- tive. While we are sensitive to an employee's right to have a union representative present during an investi- gatory interview which the employee reasonably be- lieves portends discipline, we also recognize that the exercise of that right is not without limitation. In Coca-Cola Bottling Co. of Los Angeles, 227 NLRB 1276 (1977), the Board was confronted with facts strikingly similar to those in the instant proceeding. In that case an employee summoned to a meeting that he felt might lead to disciplinary action re- quested that his particular shop steward be present at the meeting. The meeting was to occur on a Friday and both the employee and his supervisor were aware that the steward was on vacation and not due to re- L United States Postal Sers we, 241 NLRB 141 (1979). '2 4mloo, Oi Cm ,ln . 238 NLRB 551 (19751 1129 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD turn until the following Monday. The supervisor indi- cated that it was not necessary to postpone the meet- ing until the steward's return and proceeded to question the employee about his poor work attitude. At the close of the meeting, the employee was handed a disciplinary notice which he refused to sign. Alter- nate union representation was available and the em- ployee knew it but did not ask for it. The Board there concluded that where a particular representative re- quested by an employee "is unavailable for personal reasons or other reasons for which the employer is not responsible, [and] where another representative is available whose presence could have been requested by the employee in the absent representative's place," an employer commits no violation in proceeding with the interview in the absence of the requested repre- sentative. 3 We find the holding in Coca-Cola, supra, disposi- tive of the issues herein. The elements underlying the Board's Decision in Coca-Cola are present here, i.e., Bailey's requested representative, George Karago- zian, was unavailable due to causes outside Respon- dent's control and alternate representation was avail- able. In fact, Respondent's actions here present even a stronger argument in favor of finding no violation. For, unlike Coca-Cola, Respondent here took the ad- ditional step of notifying Bailey of the availability of alternate union representation.4 Even accepting the premise that Bailey was not made aware of Blackwell's status as an alternate com- mitteeman when he initially refused representation by him, we nevertheless adhere to our finding that no violation occurred as we believe that the burden of informing unit members of the designation of union officials is one more appropriately borne by the bar- gaining agent. Here the Union appointed the three alternate committeemen specifically so that no night- shift employee would be without representation if the need arose. We would, therefore, not hold Respon- dent accountable for the Union's failure to shoulder its appropriate obligation in this situation. This posi- tion takes on a far greater significance in view of the 11 While the employer has the burden of offering the employee the choice of a meeting without his union steward or no meeting at all. United Stares Postal Service, supra. that burden does not come into effect unless and until an employee makes a valid request for union representation. In Coca-Cola, the Board majority found that a request for a union representative who would not be present for 3 days was not a valid request. I4 Even assuming, arguendo, that Ostermyer did not indicate that Black- well was an alternate committeeman, there is no question that Bonser did make the comment concerning Blackwell's status thereby putting Bailey on notice that a union official was present. We note that the dissent apparently finds that Bonser's comment that Blackwell was "just" an alternating committeeman in some way justified Bailey's refusal to attend the meeting accompanied by Blackwell. We note, however, that Bailey's refusal preceded Bonser's comment and thus Bailey's decision not to attend the meeting was reached without regard to Blackwell's status as "just an alternate committeeman." fact that, as Bailey was departing Respondent's prem- ises, he informed Drake of his predicament and Drake, who like Blackwell had been recently ap- pointed an alternate committeeman, took no action on Bailey's behalf. Finding a violation under the circumstances sur- rounding the suspension of Bailey, we believe, would constitute an unwarranted expansion of the Weingart- en doctrine beyond the parameters enunciated by the Supreme Court. Accordingly, we find that Respon- dent's suspension of Bailey for refusing to attend the requested interview, even though he was made aware of the availability of alternate union representation, did not violate either the letter or intent of Weingart- en and, therefore, did not violate Section 8(a)(1) of the Act. 5 Accordingly, we shall dismiss the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the complaint be, and it hereby is, dismissed in its entirety. CHAIRMAN FANNING and MEMBER JENKINS, dissent- ing: While our colleagues have conceded that employee Drake properly requested his Weingarten rights, they nevertheless hold that Respondent is not prohibited from denying this request and disciplining the em- ployee for his continued insistence that it be honored. We dissent from their dismissal of the complaint herein. While at work on March 19, 1976, employee Drake had a confrontation with Supervisor Bonser at which he cursed him and, as found by the Administrative Law Judge, more than likely threatened him. After this exchange, Drake returned to his work station and continued to work. Bonser thereafter came over to him and asked him to accompany him to the middle dock office, a few steps from the dock floor. Drake refused and said that he would go in the morning when he would be accompanied by his steward. Bon- ser left and Drake continued to work. A few minutes I" Contrary to our dissenting colleagues' assertion, the Board's decision in Super l/alu Xena, a Division of Super Va/u Sores, Inc.. 236 NLRB 1581 (11978), is distinguishable from the instant matter. In Super alu Xenia, an employee, while on suspension, was summoned to the plant for an interview with management. Upon his arrival, the employee was informed that the employer was still considering whether to remit his suspension, put him back to work, or discharge him. The employee requested that a union representa- tive be present during this Weingarten interview, but was informed that none was available. The interview then proceeded in the absence of the requested representative. Here, however, Bailey was involved in a disturbance on the production floor when called to the supervisor's office: the purpose of the meeting was uncertain at the time, i.e.. whether it was to be a Weingarten interview or not was still in doubt; and Bailey was informed that alternate representation was available. Hence, the situation here is strikingly and criti- cally dissimilar from that in Super alu Xenia. 1130 ROADWAY EXPRESS. INC. later Bonser returned and again ordered Drake to ac- company him to the office. When Drake again replied that he would go later with his steward, Bonser told him that, inasmuch as the latter would not come into the office, he must leave the premises. Respondent admits that Drake was ordered off the premises and received a written warning thereafter because he dis- obeyed Bonser's order to go with him to the office. In such a situation, our colleagues agree, Drake reasonably could have believed that the proposed meeting in the office might result in disciplinary ac- tion. When faced with this situation, Drake lawfully refused to attend the meeting in the absence of his union steward, thereby requesting such assistance. As stated in General Electric Company, 240 NLRB 479, 481 (1979): Once such a valid request is made, the burden is on the employer to either (1) grant the request, (2) discontinue the interview, or (3) offer the em- ployee the choice between continuing the inter- view unaccompanied by a union representative or having no interview at all. However, instead of responding in one of the three ways open to him under General Electric, Bonser ig- nored the request and continued to insist that Drake submit to the interview alone. When Drake again re- fused to comply with Bonser's unlawful direction, he was disciplined. While the majority contends that he was disci- plined for not leaving the dock area and that such discipline was lawful based on Respondent's preroga- tive to maintain discipline and order in the produc- tion area, this position receives support neither from the record nor from case precedent. In ordering Drake to go to the office, Respondent has admitted that it did not merely seek to remove him from the production area, but intended to talk to him away from the dock. Given this admission by Respondent and the factual context, it is clear that Respondent intended the "talk" to be a Weingarten interview. That Drake understood Respondent's intention was to conduct such an interview is clearly shown by his request for his steward. Respondent's failure to indi- cate the converse to Drake makes this conclusion compelling. The majority's solicitous response to the suggestion that Respondent might have had a legiti- mate objective in ordering Drake to the office is sheer speculation unwarranted by the facts and unduly prejudices the person who is least responsible for any possible ambiguity regarding Respondent's inten- tions. Had Respondent been interested only in pre- venting a disturbance on the plant floor, as the major- ity asserts, Drake simply could have been ordered off the premises. Yet, in any event, the record is clear that, at the time Drake was ordered to go to the of- fice, there was no disturbance in the dock area:'6 the confrontation between Drake and Bonser had ceased, Drake had resumed his work, and there was no fur- ther disturbance caused by Drake when he again re- fused to go to the office without a steward. By his refusal, Drake was not attempting to change the locus of the interview or create a disturbance. He was sim- ply insisting that his Weingarten rights be respected in any office interview. We find totally unpersuasive the majority's view that an employee whose lawful Weingarten request has already been rejected acts at his peril if he refuses to go to another location away from the production area where the proposed unlawful interview is to take place. The majority's position is not based on any principle that the employee who has been instructed to go to the site of the proposed interview must do so because he has already engaged in disruptive activity. Rather, the "legitimate employer prerogative" cited by the majority is only that Respondent need not al- low any disruption to be caused by discussing with the employee in the production area the Weingarten alternatives stated in General Electric, supra. While the majority seems to think that such a discussion has no place on the plant floor, clearly such a "discus- sion" is not disruptive and it need go no further than stating to the employee that he has a choice between having an interview without assistance or having no interview at all. The only discernible employer inter- est involved in being able to force an employee off the plant floor in this instance is that the employer be given yet another chance to understand the illegality of its rejection of the Weingarten request. The major- ity's "preinterview discussion," during which an em- ployer belatedly might attempt to respond lawfully to the employee's request, embodies a mere speculation, and an ill-founded one, in view of the majority's rec- ognition that the employee need not repeat his re- quest at the actual interview. From the employee's perspective on the plant floor, there is no reason for him to believe that the employer will relent from its unlawful stance once he leaves his work area, particu- larly where the site of the interview is but a few feet away. Accordingly, it is manifest that the majority requires the employee to do a futile act in order to preserve his right to assistance. Such a holding seri- ously undercuts the protection of Weingarten. The Board's holding in Chrysler Corporation, Ham- tramck Assembly Plant, 241 NLRB 1050 (1979), cited by the majority, does not stand for the proposition for which the case is cited. In that case, irrespective of the Administrative Law Judge's underlying analysis, the 16 Our colleagues fail to specify the basis for their inference that there was a "disturbance in progess" at the time Drake was again ordered to report to the office. 1131 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board held only that the employer lawfully disci- plined an employee for his disruptive misconduct pre- ceding a request for union assistance. The Board found that the employer lawfully dispensed with the interview altogether, and did not discipline the em- ployee for his request for assistance. Chrysler is not controlling because here Drake was disciplined pre- cisely because he refused to submit to the interview in the absence of the requested assistance. While the Administrative Law Judge's Decision in Chrysler contains additional statements with respect to an employer's "unencumbered right to direct an employee to report to an office," these statements were not relied on by the Board, are clearly unneces- sary to the result reached therein, and consequently should not be interpreted as necessarily being reflec- tive of Board opinion even absent express disavowal. Any doubt with respect to the independent validity of the Administrative Law Judge's remarks in Chrysler, at least prior to today's opinion, should have been removed in view of the Board's holding in Glomac Plastics, Inc., 234 NLRB 1309 (1978). There, an em- ployee had been called to the plant manager's office. The employee did so, but insisted that she be accom- panied by a union officer. In response to this request, and prior to the commencement of any questioning of the employee, the employer ordered the employee back to work. Shortly thereafter, the employee again was ordered to report to the office. When she asked what the problem was, she was told that the employer "was not going to discuss any labor problems on the floor." Upon her refusal to return to the office unac- companied, she was ordered to go home. The Board, including Member Truesdale, found that this employ- ee's Weingarten rights had been violated because she would not leave the plant floor and appear in the employer's office unassisted. This case is no different from Glomac, and conclusively shows that an em- ployer does not have an unencumbered right to re- quest an employee to report to an office.' 7 17 The majority's attempt to distinguish Glomac is singularly unpersuasive and merely begs the question. While the majority stresses that a Weingarten interview had been attempted prior to the employee's refusal to leave the plant floor in Glomac, the essential facts of that attempt are reproduced above, and are fundamentally identical to the facts of the original confronta- tion between Drake and Supervisor Bonser in the instant case. In both in- stances an employee was ordered to go to the office and in each case the employee refused to do so unaccompanied. In neither case did the employer actually begin to interview the employees, but ordered or allowed them to return to work. After their return to work they were again ordered to go to the office, which they refused to do unless accompanied by a union officer, and for that refusal they were disciplined. While the employee in Glomra marched to the office in order to demand the presence of a union officer and then marched back to his worksite without being interviewed. this fact is certainly not a proper basis on which to distinguish the cases. While the majonty correctly adheres to the Board's conclusion in Glomac, that the employee then was called into the office for the purpose of a Weingarten interview, it inexplicably reaches a different conclusion regarding Respon- dent's intentions in ordering Drake to the office. It is obvious that the em- Aside from the majority's specious argument re- garding plant discipline, where an employee upon being ordered to an office discovers that his legitimate attempt to obtain the assistance of a union represent- ative will not be honored, this Board has repeatedly held that he need not comply with the order.'s More- over, if the employee proceeds to the office and as- serts his Weingarten rights upon actually being inter- viewed, we have further held he is under no compulsion to remain in the office after the request is denied." This line of cases is controlling here. Be- cause the majority has not explained why we should depart from these cases in applying the principles of Weingarten, we dissent from its dismissal of the alle- gations concerning Drake. We also dissent from the majority's dismissal of the allegation that employee Bailey's Weingarten rights also have been violated. At a March 20 meeting held between the Union and Respondent, three alternate committeemen were selected to help the Union more effectively represent employees on the night shift. The employees on this shift, however, were not immedi- ately informed of the selection of the alternate com- mitteemen. On March 26, night-shift employee Bailey was involved in an incident with Supervisor Denkins in which Bailey cursed him. At that point Denkins said, "Maybe we should go upstairs and talk about it." According to the credited testimony, Bailey re- plied that his union representative was not there20 and that he thus felt he did not have to go up to the office. After Bailey was told to leave but prior to his depar- ture, he saw Assistant Terminal Manager Ostermyer and stated that he was being sent home because he did not have his union representative. Ostermyer then suggested the name of employee Blackwell, indicating that he was an alternate committeeman. Bailey was not familiar with this term, had not heard of Black- well's appointment, and rejected Ostermyer's sugges- tion. Supervisor Bonser, who was present, immedi- ately added, "Well, he's just an alternating committeeman." Several days later Bailey received a written warning. Respondent has admitted that Bai- ley was sent home and given the warning, in part, because he disobeyed orders and refused o accom- ployer's intentions in ordering the employee to go to the office were no clearer in Glomac than they are here. If there is an obvious factual distinction between Glomac and this case, it certainly may not rest on the non sequitur that the employee's actions in marching to the office and back again have served to define what the employer intended to do had the employee gone to the office alone, as ordered. oS New York Telephone Company, 203 NLRB 1153, 1155-56 (1973); Van- Tran Electric Corporation, 218 NLRB 43 (1975); Brown & Connolly, Inc., 237 NLRB 271, 286 (1978): Newton Sheet Metal, Inc., 238 NLRB 970 (1978). 19 M. Vernon Tanker Company, 218 NLRB 1423 (1975); Spartan Stores, Inc., 235 NLRB 522 (1978). Cf. AAA Equipment Serice Company, 238 NLRB 390 (1978), enfd. 598 F.2d 1142 (th Cir. 1979). 2 Ronald Page. the union committeeman on Bailey's shift, was absent that night. 1132 ROADWAY EXPRESS, INC pany Denkins to the office without a union represent- ative. The majority finds that this case is controlled by the majority holding in Coca-Cola Bouling Co. of Los Angeles, 227 NLRB 1276 (1977), which holds that an employer need not postpone an interview with an em- ployee because a particular union representative is unavailable where another representative is available whose presence could have been requested. In our dissent in Coca-Cola, we stated that the employee's request for assistance from his steward, who was tem- porarily absent, was proper and that the employer unlawfully rejected the request by conducting the in- terview without the steward. While our rationale from Coca-Cola is likewise applicable to the instant case, we also find that the present facts more strongly indicate a violation than those in Coca-Cola, contrary to the majority's opposite assertion. Specifically, Re- spondent here need have waited only a couple of hours for the arrival of the union steward and there also has been no showing here that Bailey was aware that adequate alternate representation was available. Bailey testified that he did not understand the term "alternate committeeman." and his rejection of Blackwell's assistance was quickly reinforced by Su- pervisor Bonser's remark that Blackwell was "just an alternating committeeman." In view of this remark by Bonser. it is difficult to see why the majority finds the case stronger for dismissal because Respondent mentioned Blackwell as alternating steward. Finally. we disagree with the majority's assertion that the Union's failure to announce Blackwell's appointment may operate to Bailey's detriment. In appointing the committeemen, the Union was attempting to afford night-shift employees additional representation. The Union had no such obligation to do so, and it is clear that, in the absence of any representative at the plant at the time of the interview, an employer must respect the employee's request for assistance. even if it means delaying the interview.2 Consequently, the majority 21 Super alu Xenia. a Diision of Super Ial/u Stores, Inc., 236 NLRB 1581 (1978). Although the majority has not chosen to dispute the proposition for which Super a/lu Xenia has been cited. vi:. an intended Weingaren nter- view must be delayed should the employer be unable to fulfill the employee's request for assistance, our colleagues nevertheless assert that Super I lu Yenia is "strikingly and critically dissimilar." Although this assertion is quite beside the point. their statement is simply inaccurate. At the time that Balley spoke with Ostermyer, he was no longer engaged in the alleged disruptive activity,. but was in the process of leaving the plant. as ordered Having been already thus disciplined, he again indicated to Ostermyer that he sought to be assisted h a union representative. in reference to Supervisor Denkins' order that he go to the office. Thus the situation here is not at all dissimilar to that in Super Vllu eniwa The majority further claims that Bailey could not have been certain that Respondent intended to conduct a setingarlen interview when he was ordered to the office, and that this case was therefore distinguishahle from Super lalu Itema where such an nters lew had acluall\ taken place. [or the reasons stated above with respect to D)rake's request for assistance when he was ordered to the office. we find he majlirit's .nllsis errioneous. The majorilty's psiion renders iIt mpossible for an emploee to anticipate a 14irelngurten interview n matter how compelling the inference or the circumstances has turned the Union's voluntary attempt to assist the employees into a pitfall, causing them to be deprived of protections formerly available.2 2 In view of the above, we find nothing in the record which affords Respondent the right to ignore Bailey's request that he be assisted by his union representative. By doing so, Respondent violated Section 8(a)( I) of' the Act re- garding Bailey as well as Drake. ' We also disagree with the majority's reliance on the act that emplosee D)rake, who had recently been appointed alternale committeeman. look no action on Bailey's behalf when nformed h Baile, that he was being sent home As Bailey was not aware of Drake's selection as alternate cmmittee- man. there was no reason for him to seek his assistance DECISION SI. I :NI OF i rl CASt MORtoN D. FRIEDMAN, Administrative Law Judge: This case was heard at Detroit. Michigan. upon the consolidated complaint of the General Counsel issued July 8. 1976. which complaint was based upon a charge filed in Case 7 CA 13001 on May 17. 1976. by Van M. Drake, an individ- ual. and upon a separate charge filed in Case 7 CA 13007 on May 19. 1976. by Edward Bailey, an individual. The complaint, in substance, alleges. and the Respondent in its duly filed answer denies. that Roadway Express. Inc.. herein called the Respondent, issued a notice of warning letter to Drake and to Bailey becaue they refused to attend meetings which they had reasonable grounds to believe could result in their being made subject to disciplinary ac- tion. including discharge. At the hearing the parties were given full opportunity to present evidence and to make oral argument. After the close of the hearing, counsel for the General Counsel and counsel for the Respondent filed briefs. Upon the entire record, and upon consideration of the contentions and arguments contained in the briefs of' the parties. and from my observation of the witnesses, I make the following: FINDINGS ()F FA( I 1. THE BLUSINIESS OF TIH RFSP()NI)FNI The Respondent. a Delaware corporation. which main- tains its principal office and place of business in the cit of Akron, Ohio. is engaged in the interstate transportation of freight and the operation of shipping terminals. one of which is located at Taylor. Michigan. the only facility in- solved in this proceeding. During the calendar year ending December 31. 1975. a representative period. the Respon- dent. in the course and conduct of its business operations, derived gross revenues in excess of $50.000 from the inter- state transportation of products from points located outside the State of Michigan directly to points located within the State of Michigan. It is admitted, and I find, that the Respondent is an em- plover engaged in commerce within the meaning of Section 2(2). (6). and (7) of the Act. 1133 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. 111E L.ABOR ORGANIZATION INVOLVTID It is admitted, and I find, that Local 299, International Brotherhood of Teamsters. Chauffeurs. Warehousemen and Helpers of America. herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. TIHE UNFAIR LABOR PRACTI(CES A. The Facts 1. Introduction At the Taylor, Michigan, terminal of the Respondent ap- proximately 50 of the employees are dock checkers, includ- ing both Drake and Bailey, who are members of Local 299. Although the Respondent at its many terminals throughout the country employs approximately 18,000 individuals, it does not issue any specific employees' handbook which sets forth its rules and regulations. The only handbook distrib- uted to employees by the Respondent is one describing the manner in which freight should be handled. At the Taylor facility here involved there is a terminal manager, at least one assistant terminal manager, and on each shift a terminal operations manager, all of whom re- port to the terminal manager. Essentially, in the basic freight handling operation on the dock, the terminal opera- tions manager is normally the chief supervisor on any spe- cific shift. This is especially true on the midnight to 8:30 a.m. shift on which both Drake and Bailey are employed. Under the terminal operations manager, known as T.O.M., are a number of foremen with normal supervisory func- tions. Also, at the facility involved, the night-shift employees have a 10-minute break at approximately 2:30 a.m., dinner or lunch at approximately 4:30 a.m., which period lasts for one-half hour, and presumably another break between that time and quitting time of 8:30 a.m. At the dock area of the facility are maintained three small offices, one of which is known as the "inbound office." a second the "outbound office," and another simply as "of- fice" which is used by the various supervisors for keeping records and consultation and to which no one is specifically assigned a desk. This office is in the center of the dock area and entry thereto is made by ascending three steps from the dock to the office. Distinct and separate from these three dock area offices are the administrative offices which are neither adjacent to nor visible from the dock area. In addi- tion to the foregoing description of the Respondent's facil- ity, there are also located in the facility a lunchroom and adjacent thereto a locker room where the employees may keep their belongings and eat their lunches during the lunch and break periods. 2. The events The night shift at the Respondent's Taylor. Michigan. terminal extends from midnight until 8:30 a.m. During March 1976. Thomas Bonser was night-shift terminal op- erations manager and union member Van Drake was a dock checker. During the night shift of March 19. Drake overstayed either his 2:30 break period or lunch period at approximately 4:30 a.m. Whether this was excusable by reason of the fact that Drake was busy working and did not realize it was breaktime or lunchtime is immaterial. Never- theless, his immediate supervisor, Gregory S. Denkins, a dock foreman, noticed that Drake was missing from his normal work station. He notified Bonser and assisted the latter in looking for Drake. They found Drake in the lunch and locker room at which time Bonser told Drake that the latter should get upstairs, referring to the dock and Drake's work station. Drake thereafter went to his locker, put his belongings away, and proceeded upstairs from the locker room to the dock. Bonser's remark to Drake evidently irritated Drake and when the latter arrived at the dock entrance at the head of the stairs he saw Bonser. Exactly what Drake told Bonser is in dispute. Drake testified that he told the latter that "he was f with the wrong person." According to Drake he then turned around and walked away. Bonser called after Drake and asked him if that was a threat; at which point Drake turned around and told Bonser that the latter could take it any way he wanted to take it. According to Bonser, Drake told him that "When I was f - with him, it was f with the wrong person. I was going to get myself hurt." In view of the disposition of' this case, as hereinafter related, I find it immaterial as to the exact words that were used by Drake except that I find that Drake did use the curse word involved and that Bonser. at least, felt that there was a threat also involved. As Drake walked back to his work station, a distance of approximately 60 yards, Bonser called after him but Drake ignored Bonser and proceeded to the work area where he began to move some boxes to be loaded into a trailer. Bon- ser then approached Drake and asked Drake to go with him up to the middle dock office, the one elevated above the dock by three steps. Drake refused, stating that he would do so in the morning when he would be accompanied by his steward. It should be noted that the steward Drake was referring to worked the day shift beginning at 8:30 a.m. It should also be noted that the committeeman, named Page. who was customarily on at night and who could have repre- sented Drake in any encounter with supervision, was absent that night, a fact of which Drake was cognizant. Drake then continued working but some minutes later Bonser again approached Drake accompanied by Foreman Les T. Ulrich. Again Bonser. with Ulrich standing by, asked Drake to proceed to the office with him. However, Drake again refused, stating that he would do so in the morning accompanied by his steward. With that, Bonser told Drake that inasmuch as the latter would not come into the office he was being told to leave the premises.' As Drake was leaving, after he was sent home by Bonser, he saw a fellow employee, Blackwell, and told the latter why he was being sent home. Drake asked Blackwell to tell the steward. George Karagozian. that Drake would talk to Karagozian in the morning. Drake testified that the reason he wanted a steward to go to the office with him when he was asked to do so by Bonser was that he felt that the interview with Bonser could lead to I All oi the foregoing Iromt credited portions 1 the th e sim n) of I)rake. Boner, and lrich. 1134 ROADWAY EXPRESS, INC some disciplinary action being taken against him by the Respondent and that he had been informed that he was entitled to representation in such an event.' Bonser, along with other of the Respondent's witnesses, credibly testified that it was the practice of the Respondent to isolate any employee on the dock who was giving trouble in order to talk to such employee away from the dock so that there would not be any interruption of the work being performed on the dock. However, there is nothing in the record to show that employees have knowledge of this or that, specifically, Drake had knowledge of this procedure. As a result of all of the foregoing, at approximately 10 o'clock on the morning of March 19, a meeting was held at the Respondent's facility between representatives of the Union and the Respondent. David Gerschultz. terminal manager, stated that Drake had been sent home early be- cause he refused to go to the office with Bonser at the lat- ter's request. This was in response to questions as to why Drake was sent home early with loss of pay by Peter Kara- gozian, a union business agent. Present also were George Karagozian and Drake. Bonser was not present. The matter was discussed at some length but nothing was decided inas- much as Bonser was not present. Accordingly, a meeting was scheduled for the following day, March 20. The meeting on March 20 was attended by the same indi- viduals. In addition, Bonser was present and gave his ver- sion of what had happened the night before. He told the others that Drake had cursed and threatened him. Drake denied that he had threatened Bonser. During this meeting, also, George Karagozian, the union steward, stated that he was appointing three alternate committeemen. They were to be Drake, employee Blackwell, above mentioned, and a third employee. Several days after the meeting, Drake received a written warning on a form used by the Respondent which stated that on March 19, 1976, at the Respondent's Taylor facility, Drake violated company policy by "flagrant disobeying of orders. Violation of uniform rules and regulations 3g." Evi- dently what constituted the breach of the uniform rules and regulations referred to was the cursing and alleged threaten- ing of Bonser by Drake. As a result of the foregoing warning, a disciplinary ac- tion, a grievance was filed which grievance was heard at a meeting of the Michigan Joint State Cartage and Over-the- Road Arbitration Committee on May 11, 1976. At the dis- cussion of Drake's grievance, neither the Union nor the Respondent offered any witnesses, but Drake did deny that he threatened Bonser on the night of March 19. The deci- sion of the committee was that the reprimand for threaten- ing Bonser would be rescinded but the reprimand issued for flagrantly disobeying orders was upheld. 2 Received in evidence was a newspaper clipping which Drake and Bailey testified was taped to the wall of the Respondent's facility. which summa- nzed the decision of the Supreme Court in the cases of N L R. v. J Wein- garten. Inc. 420 U.S. 251 (1975). and International Ladies' Garment W'orkers' Union, Upper South Department, AFL CIO s. Quality Manufacturing Co. 420 U.S. 276 (1975), in which the Supreme Court held that an employee was entitled to union representation when an employee is called for an interview with management which the employee may reasonahly bheliee could lead to disciplinary action. These cases are more fully discussed hereinafter n this Decision. It should be noted with all of the foregoing that, although George Karagozian, union steward, did announce he was appointing three additional committeemen for the purpose of having someone on hand in the event of an incident such as the one in which Drake and Bonser were involved, nei- ther Karagozian nor the Respondent ever informed the em- ployees of such appointment. The record establishes that the Union normally will inform the Respondent of an ap- pointment of a business agent or a steward but does not normally apprise Respondent of the appointment of a com- mitteeman or alternate committeeman. Nor, under the con- tract, is it required oft' the Respondent to inform employees of the appointment of committeemen. Accordingly, it can- not be concluded that the employees working at the Re- spondent's facility here involved were in any way informed by either the employer or any representative of the Union that three alternate committeemen had been appointed. An incident somewhat similar to the one involving em- ployee Drake occurred on the night shift on March 26. this time involving dock checker Edward Bailey. Foreman Den- kins evidently spoke to Bailey several times during that night prior to the lunch break about 5 a.m. and implied to Bailey that the latter was not doing his job. Bailey felt that Denkins was harassing him. About 5 a.m., after the lunch break, Denkins noticed that Bailey had not been at or near his work station for some period of time and went looking for him. Denkins found Bailey some distance away talking to another employee. Denkins told Bailey to quit talking and get back to work. Denkins also told Bailey that a little more work and little less talk would be appreciated. With that, Bailey turned around, faced Denkins. and told the latter to "Get f -. " Upon hearing this, Denkins said to Bailey. "Maybe we should go upstairs and talk about it." Bailey refused, turned around, and went back to work. Denkins then called Bonser and Charles Ostermyer. assistant terminal manager, and asked what he should do. Ostermyer instructed Den- kins to send Bailey home because he did not want any dis- turbances on the dock. According to Denkins. Bailey did not say that he wanted union representation before going to the office. However. Bailey testified that he did not completely refuse to go to the office with Denkins but, rather, he told Denkins that he did not have his union representative there and felt he did not, therefore, have to go up to the office. This was because Donald Page, Bailey's committeeman, had left earlier be- cause he felt ill, and Bailey felt he was told to go to the office for disciplinary reasons. After telling Denkins all of the foregoing. Bailey went back to work but. 6 or 7 minutes later, Denkins came to him and told Bailey to finish what he was doing and to pick up his things and go home. On his way to punch out, Bailey saw employee Drake and mentioned to the latter that he had been sent home. Drake said nothing to Bailey about the fact that Drake had been appointed an alternate com- mitteeman. Also. on his way to punch out. Bonser and Ostermyer encountered Bailey, and Ostermyer asked what was going on. Bailey explained what occurred. telling him that he was being sent home because he did not have his union representative present. Ostermyer asked if there was DI)enkins testified this was his normal operating procedure In such cases. 1135 DECISIONS OF NATIONAL LABOR RELATIONS BOARD anyone else and mentioned the name of Morris Blackwell as an alternate committeeman. Bailey said "no." Bonser then added, "Well, he's just an alternating committeeman," which, according to Bailey, led Bailey to believe that Black- well was not able to handle the situation. Bailey said he would talk to George Karagozian in the morning to try to straighten out the matter. Bailey was left with the impres- sion that this was satisfactory to Bonser and Ostermyer. Bailey testified that he did not know at the time that alter- nate committeemen who could have represented him had been appointed. He claimed he was not even familiar with the term "alternate committeemen." 4 In connection with all of the foregoing, it should be noted that neither Drake nor Bailey had ever before been asked to go to the office during the several years each had worked for the Respondent. It is evident, from a reading of the uncontroverted testi- mony of Bonser, Ostermyer, Gerschultz, and Respondent's district labor relations manager, James F. O'Neill, that Gerschultz, the terminal manager, is the only individual au- thorized by the Respondent to mete out discipline, or to make a final determination as to the disposition of incidents such as occurred between Drake and Bonser, and Bailey and Denkins. Again, there is no record evidence that the employees had knowledge of this fact and, additionally, O'Neill admitted that the foreman, or terminal operations manager in charge on a particular shift, can make recom- mendations with regard to the disposition of a matter which might end in a disciplinary measure being taken against an employee. In any event, on the following Monday morning, March 29, a meeting was held at the terminal attended by Bailey. Peter Karagozian, George Karagozian, David Gerschultz, terminal manager, and probably some others. Gerschultz repeated what he had told George Karagozian at a meeting on the previous Friday as to the reasons why Bailey had been sent home. These reasons were that Bailey had cursed a supervisor and had refused to accompany Denkins to the office. At the Monday meeting, Bailey was asked directly by Gerschultz whether he had, in fact, cursed at Denkins. Bai- ley denied that he had. Although no reprimand was an- nounced at the meeting, several days later Bailey received a written reprimand on a form similar to the one received by Drake in which it was stated that he was given a warning for flagrant disobeying of orders and violating uniform rules and regulations. Thereafter, as in the case of Bailey, a grievance was filed which was heard by the Joint Arbitration Committee on the same day that Drake's grievance was heard. Although, again, neither side presented any witnesses, Bailey denied that he had cursed at his supervisor. The committee's deci- sion in Bailey's case upheld the reprimand issued for fla- grant disobeying of orders but rescinded the reprimand is- sued for cursing his foreman. ' The foregoing recital of facts is a compendium of the testimony of Bailey, Bonser. Ostermyer. and Denkins, taken from credited portions of testimony of each of them. To the extent that I credit a witness only in part and discredit him in other parts. I do so upon the evidentiary rule that it is not uncommon "to believe some and not all of the witness' testimony." N.LR.B. v. Universal Camera Corporation, 179 F.2d 749, 754 (2d Cir. 1950). B. Discussion and Conclusions Counsel for the General Counsel contends that the cases of Bailey and Drake fall within the purview of the Supreme Court's decision in the cases of N.L.R.B. v. J. Weingarten Inc., supra, and International Ladies' Garment Workers' Union, Upper South Department, AFL-CIO v. Quality Manufacturing Co., supra, in which it was established that an employee has the right to refuse to submit, without union representation, to an interview which he reasonably fears may result in his discipline. Counsel for the General Counsel points out, in support of his contention, that both Drake and Bailey cursed at their superiors in the Respon- dent's hierarchy and, therefore, could reasonably believe in Drake's case with Bonser, and in Bailey's case with Den- kins, that a meeting in the office could result in their being disciplined. The Respondent, on the other hand, while agreeing that the Weingarten and Quality Manufacturing Co. cases, supra. conferred the foregoing right upon employees, points out that the Supreme Court in the Weingarten case established certain limitations upon this right. The Respondent argues that these limitations are applicable to the present case un- der the facts heretofore recited and that, therefore, neither Drake nor Bailey can claim that the reprimand each re- ceived for refusing to go to the office for discussions with his supervisor was unlawful. In support of its contention, the Respondent argues that neither Bailey nor Drake could have reasonably believed that the discussions which their respective supervisors re- quested of them could have led to a disciplinary action being taken against them; that the interviews contemplated by the respective supervisors, in fact, were not investigatory interviews; that the Respondent has no duty to ensure that a union representative had to be present on all the shifts and that therefore Respondent's inability to supply a union representative for Drake on the night of June 19 did not constitute a breach of its duty toward Drake as a union member; and that in the case of Bailey the Respondent offered Bailey union representation when it mentioned Blackwell to Bailey but he refused to be represented by Blackwell and that therefore, in that instance, the Respon- dent fulfilled its duty to him. The facts as recited above establish without doubt that Drake, at the very least, cursed at Terminal Operations Manager Bonser and, I conclude, more than likely used the threatening terms testified by Bonser. Additionally, the rec- ord establishes that Drake had never before been ordered to go to the office for an interview. Although the Respondent's witnesses testified, without contradiction, that it was the Respondent's policy for supervisors to take individuals who were creating problems away from the work area to prevent any disturbance which could cause a discontinuance of work on the dock, there is no record evidence that the em- ployees here involved were ever made aware of this. In fact. although not heretofore recited, although Ostermyer testi- fied that this policy had been in force for some time and that he had isolated employees before the incidents herein, he could testify to only two such instances over the period of time that he had been assistant terminal manager at the facility involved. Thus, I find and conclude, by objective standards, that Drake reasonably' believed his meeting with 1136 ROADWAY Bonser could result in his being subject to disciplinary ac- tion. Moreover, Bonser did not deny in his testimony that Drake refused to go to the office with him because there was no union representative present to accompany Drake in that interview. None of the Respondent's witnesses, in- cluding Bonser. contravened the testimony of Drake to the effect that the night union committeeman was absent on the evening of March 19. Although it may well be that only Terminal Manager Gerschultz possesses the authority to mete out discipline, the record does not establish that employees were made aware of this. Nor was this merely a routine matter that Bonser wished to discuss with Drake. The very fact that after the discussions between Gerschultz and union repre- sentatives on March 19 and 20 Gerschultz issued a repri- mand to Drake for cursing and threatening Bonser is reason enough to conclude that the Respondent did not believe that cursing and threatening a supervisor is merely a rou- tine matter. Thus, it cannot be concluded that Drake's exer- cise of his right to have union representation interfered with any legitimate employer prerogative. Nor does the fact that Gerschultz met with union representatives on March 19 and 20 concerning the matter constitute fulfillment of the Respondent's duty inasmuch as Gerschultz, after such in- terview, nevertheless issued a reprimand to Drake for hav- ing refused, initially, to go to the office with Bonser. I therefore conclude that all the required elements estab- lished by the Supreme Court in Weingarien, supra, were present on the night of March 29 and that the Respondent's action in ordering Drake to leave the Respondent's prem- ises when the latter refused to attend the meeting with Bon- ser constituted an act in derogation of Drake's Section 7 rights and, accordingly, was violative of Section 8(a)( ) of the Act and the disciplining of Drake for the refusal consti- tutes an additional violation. The disposition of the issues involving employee Baile is somewhat more complicated factually because, in Bailey's case, before he left the premises after being sent home by Denkins, who was instructed to send Bailey home by Oster- myer, Bailey met Ostermyer and Denkins as he was leaving the premises.' As Ostermyer and Denkins approached Bai- ley as the latter was leaving the building, Bailey stated after some introductory words between Bailey and Ostermyer that he was not going anywhere, including up to the office, without union representation. I accept the testimony that Ostermyer suggested that Morris Blackwell was Bailey's committeeman and that Blackwell could come upstairs with Bailey. Bailey refused saying, in effect, that he was not going anywhere until the morning, when George Karago- zian would be there. It should be noted, in connection with the foregoing con- versation, that Bailey was not aware of the fact that Black- I do not credit Denkins to the effect that Bailey did not ask for a union representative or, at least, inform Denkins that he did not want to attend a meeting with Denkins without union representation. This resolution of credi- bility is based upon the fact that again, as hereinafter discussed, the testi- mony of Ostermyer, Denkins, and Bailey is in agreement upon the fact that as he was leaving Bailey explained to Ostermyer why he would not go to the office with Denkins. Although that conversation was ery short. Bailey made his reasons clear. EXPRESS, INC. 1137 well had been appointed committeeman. As hereinabove. related, no Respondent or union representative informed the employees that Karagozian had appointed three new alternate committeemen at the meeting of March 20. Ac- cordingly, when Ostermyer suggested the name of Black- well, as far as the record shows Bailey only knew Blackwell as a fellow employee and was not aware of the fact that Blackwell was an alternate committeeman. In any event. however, Bailey was already on his way home after being requested to leave the Respondent's premises before Oster- myer offered to discuss the matter with Bailey and Black- well as a union representative. The words, of course, that Ostermyer used were only "What about Blackwell?" He did not inform Bailey at that time that Blackwell was a union representative.6 It could readily be argued that inasmuch as the Respon- dent was under no duty to inform its employees concerning the appointment of Blackwell and the other two new alter- nate committeemen, therefore, when Blackwell's name was suggested by Ostermyer, Ostermyer could well have thought that Bailey was aware of Blackwell's appointment. However, this would be pure speculation inasmuch as there is nothing in the record to show that this was so. In any event. in each instance of both Bailey and Drake. the particular supervisor involved, under the rationale of Weingarten, supra, could have made his report to his higher- ups without any interviews and could have foregone the interview or could have given either Drake and Bailey time to obtain union representation before such interview. The record establishes that Steward George Kargozian was due to arrive at the Respondent's premises within one-half hour after the Bailey incident. Certainly. it would seem unrea- sonable to send BaileN home, under these circumstances, inasmuch as all Bailey requested was that Karagozian be present at the proposed interview ifollowing the cursing inci- dent. The lapse of time was not so great that the Respon- dent, acting reasonably, could not have waited for Karago- zian to arrive. Accordingly. I find and conclude that in the case of Bai- ley. as in the case of Drake, the Respondent's sending Bai- ley home constituted interference with Bailey's Section 7 rights and thereby the Respondent violated Section 8(a)(l) of the Act. His reprimand for refusing the meeting consti- tuted an additional violation. In coming to the conclusions, both factual and legal, as set forth above, I have given full consideration to the fact that at both the Respondent's level and at the Michigan Joint State Cartage and Over-the-Road Arbitration Com- mittee hearings, Bailey and Drake denied cursing and, in the case of Drake, threatening their supervisors. This is em- phasized by the Respondent as reason to discredit both Drake and Bailey inasmuch as they undoubtedly lied at these times. However. under the circumstances here pre- sented, their failure to tell the truth in those instances, al- though not normally excusable. is very understandable in view of the fact that the reprimands they received were in question. However, the instant case was not tried for the purpose of establishing whether Bailey and Drake did com- I From the testimon) of both Baile) and Bonser who were present at the time DECISIONS OF NATIONAL LABOR RELATIONS BOARD mit cursing abuses for which they could have rightly re- ceived reprimands. The issues in this case are concerned solely with whether the Respondent acted wrongfully in sending these individuals home on the occasions involved. I have, therefore, credited both Drake and Bailey in those instances where the logic of the situation so dictates despite their having lied on the two earlier occasions. IV. IIE EFFECT OF THE UNFAIR I.ABOR PRAC(TIL(S PON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section 1, above, have a close, inti- mate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. TIFE REMEDY It having been found that Respondent herein has vio- lated the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative ac- tion designed to effectuate the policies of the Act. It having been found that the Respondent. by ordering employees Drake and Bailey to leave the premises before their normal quitting time on March 19 and 26 respectively, and having further violated the Act by issuing warning no- tices to these individuals for having refused to obey the orders of their respective supervisors to go to the office fr interviews, it will be ordered that the Respondent revoke its warnings to these individuals fbr allegedly disobeying or- ders. It will further be ordered that the Respondent make Drake and Bailey whole for any loss of earnings suffered by reason of the discrimination against them, by paying to each a sum of money equal to that which each would have earned as wages for the hours they lost. Each of the sums of money to be paid by the Respondent to Drake and Bailey shall bear interest from the dates esch of them were sent home. Upon the basis of the foregoing findings of fact and the entire record in this case, I make the following: CONCLUSION S OF LAW I. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating against employees Drake and Bai- ley because these individuals refused to attend, without union representation, what could have been a disciplinary interview, the Respondent has engaged in unfair labor prac- tice prohibited by Section 8(a)(I) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 1138 Copy with citationCopy as parenthetical citation