Safeway Stores

National Labor Relations Board - Board Decisions

Jul 31, 1991

303 N.L.R.B. 989 (N.L.R.B. 1991)

989
303 NLRB No. 154
SAFEWAY STORES
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
2 Member Raudabaugh sets forth the following rationale for the conclusion
that the meeting of December 14 constituted an interview to which Weingarten
rights attached. At that meeting, the Respondent was inquiring into employee
Hawkins’ record of absenteeism. Hawkins could reasonably fear that discipline
would be imposed as a result of that inquiry. Further, during that inquiry, Re-
spondent demanded that a drug test be taken, and Hawkins opposed that de-
mand. Hawkins could reasonably fear that discipline would be imposed if he
failed to comply with the Respondent’s demand. In these circumstances, Mem-
ber Raudabaugh concludes that Hawkins was entitled to union assistance at
the meeting. This is not to say that Hawkins would have a right to union as-
sistance at any drug test that may have been administered.
Safeway Stores, Inc. and Frank Hawkins. Case 32–
CA–10109
July 31, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On June 7, 1989, Administrative Law Judge Jerrold
H. Shapiro issued the attached decision. The Respond-
ent filed exceptions and a supporting brief and the
counsel for the General Counsel filed an answer to the
Respondent’s exceptions and a brief in support of the
judge’s decision.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
1. The Respondent excepts to the judge’s finding
that the suspension of Hawkins was unlawful on the
same basis as the discharge. It argues that, according
to the judge’s factual findings, the Respondent made
the decision to suspend Hawkins for failure to take the
drug test before Hawkins ever requested the presence
of a union representative and that therefore the suspen-
sion could have nothing to do with any Weingarten re-
quest (NLRB v. J. Weingarten, 420 U.S. 251 (1975)).
We disagree.
The Respondent had launched an inquiry into Haw-
kins’ record of absenteeism. As a first step in that in-
quiry, the Respondent determined to give Hawkins a
drug test to see if his absences were related to his tak-
ing drugs. When Hawkins arrived at work on Decem-
ber 14, he was called to the office of Safety Driver Su-
pervisor Latoures, who told Hawkins that he had been
instructed to give Hawkins a drug test. Latoures ex-
plained that the Respondent wanted Hawkins tested for
drugs because it thought that his absences were related
to his using drugs again. Hawkins protested that his
absences were related to a kidney problem and that he
had submitted doctors’ excuses for most of them.
When Latoures reiterated that the Respondent wanted
him to be tested, Hawkins sought union assistance. His
requests were refused, and he was told that he would
be suspended if he refused to take the drug test on the
spot.
We do not pass on the administrative law judge’s
apparent conclusion that a drug test, standing alone,
would constitute an investigatory interview under
Weingarten2 As noted, however, the test here was part
of an inquiry into Hawkins’ absence record. Hence,
when Latoures—carrying out his instructions to the let-
ter—disregarded Hawkins’ requests for union assist-
ance and suspended him for not taking the drug test,
Latoures was, in effect, penalizing Hawkins for claim-
ing Weingarten rights with respect to the larger con-
troversy. Further, the Respondent could reasonably
have anticipated that Hawkins might seek union assist-
ance out of fear of possible discipline for his absences.
Yet, unlike its practice on past occasions involving dis-
ciplinary interviews with Hawkins, the Respondent had
made no advance arrangements for a union representa-
tive to be present. Thus the Respondent’s original sus-
pension decision encompassed not only a simple re-
fusal to take a drug test, but also Hawkins’ reasonably
foreseeable request for union representation at the
meeting in which the test would be administered—a
request that the Respondent was prepared to have its
supervisor disregard. In these circumstances, the sus-
pension cannot be divorced from Hawkins’ assertion of
Weingarten rights, and it is unlawful just as is the dis-
charge.
2. The Respondent contends that, even assuming
arguendo that the December 14 interview violated em-
ployee Hawkins’ Section 7 rights as defined in NLRB
v. J. Weingarten, supra, the reinstatement remedy is in-
appropriate. In support of this contention, the Respond-
ent relies on Taracorp, Inc., 273 NLRB 221 (1984),
and its progeny. We find no merit in this contention.
In Taracorp, the administrative law judge had found
that an employee had been discharged solely for mis-
conduct unrelated to protected activity. Because that
misconduct had been the subject of an investigatory
interview conducted in violation of the employee’s
Weingarten rights, however, the judge ordered a rein-
statement and backpay remedy. The Board reversed,
finding that there was no sufficient nexus between the
unfair labor practice (denial of representation at the
interview) and the reason for the discharge (the em-
ployee’s earlier misconduct). Taracorp, supra at 223.
Accord: System 99, 289 NLRB 723 fn. 3 (1988). In
this case, by contrast, we are adopting the judge’s find-
ing that the Respondent’s claims concerning its reason
for discharging Hawkins were pretextual and that its
real reason was that Hawkins refused to participate in
990 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In its answer to the complaint Respondent admits it meets the Board’s ap-
plicable discretionary jurisdictional standard and is an employer engaged in
commerce within the meaning of Sec. 2(6) and (7) of the Act. Also Respond-
ent admits in its answer that General Truck Drivers, Warehousemen, Helpers
and Automotive Employees of Contra Costa County, Teamsters Local 315, af-
filiated with the International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL–CIO (Union), is a labor organization
within the meaning of Sec. 2(5) of the Act.
2 All dates hereinafter, unless specified otherwise, refer to the year 1988.
3 In connection with this part of the settlement agreement Hawkins sub-
mitted to Respondent’s representatives a letter from his doctor dated August
26 which detailed his history of physical problems caused by kidney stones
and advised Respondent that the adverse effect on his body caused by the kid-
ney stones ‘‘appears to be a chronic and on-going condition, which will re-
quire further treatment and medical evaluation in the future.’’ However, when
the parties entered into the aforesaid settlement agreement they entered into
it with the understanding that ‘‘there is no current claim of the chronic condi-
tion.’’
an investigatory interview (consisting essentially of a
drug test administered by the Respondent’s super-
visors) without the assistance of a union steward. The
nexus between the statutory right and the discharge is
clear. The reinstatement and backpay order remedies
the suspension and discharge, not an unlawful inter-
view. (Indeed, as the judge pointed out (at fn. 18), the
complaint did not even allege that the December 14
interview as conducted was unlawful, and he did not
pass on any such allegation.) Accordingly, we find the
remedy appropriate.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Safeway Stores, Inc., Rich-
mond, California, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Gary M. Connaughton, for the General Counsel.
Lindbergh Porter, Jr. and Brian Ashe (Littler, Mendelson,
Fastiff & Tichy), for the Respondent.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge. The
hearing in this case held on April 10, 1989, is based on an
unfair labor practice charge filed January 12, 1989, by Frank
Hawkins (Hawkins) and on a complaint and an amendment
to the complaint issued February 15, 1989, and March 14,
1989, respectively, on behalf of the General Counsel of the
National Labor Relations Board (Board), by the Regional Di-
rector of the Board, Region 32, alleging that Safeway Stores,
Inc. (Respondent), on December 14, 1988, denied Hawkins’
request to consult with a representative of the union which
represented him prior to participating in an interview which
he had reasonable cause to believe would result in discipli-
nary action being taken against him, and further alleges that
Respondent violated Section 8(a)(1) of the National Labor
Relations Act (Act), when on December 19, 1988, it dis-
charged Hawkins because Hawkins refused to participate in
the aforesaid interview without prior consultation with a
union representative. Respondent filed timely answers to the
complaint and to the amendment to the complaint in which
it denied the commission of the alleged unfair labor prac-
tice.1
On the entire record, from my observation of the de-
meanor of the witnesses, and having considered the General
Counsel’s and Respondent’s posthearing briefs, I make the
following
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Evidence
Respondent, a corporation, owns and operates retail super-
markets in several of the States of the United States, includ-
ing California. The facility involved in this case is Respond-
ent’s distribution center for Northern California located in
Richmond, California. The Union and Respondent have been
parties to a series of collective-bargaining agreements cov-
ering a unit of employees employed at this facility for the
past several years. The most recent agreement is effective
from May 1, 1988, through April 30, 1992. The parties stipu-
lated that the agreement provides for a grievance-arbitration
procedure which includes a bipartite panel comprised of an
equal number of employer and union representatives and fur-
ther stipulated that the agreement provides that a unanimous
decision of the bipartite panel constitutes a final decision as
to those issues which were presented to the panel.
Frank Hawkins, the Charging Party, was employed by Re-
spondent at the Richmond distribution center since 1966 and
during the time material was employed there as a truckdriver
and, with Respondent’s other truckdrivers, was represented
by the Union and covered by the parties’ collective-bar-
gaining agreement. Since 1986 Hawkins has suffered from a
chronic medical problem, kidney stones, which requires med-
ical attention.
During 1987 Respondent discharged Hawkins because it
believed he was using drugs. The Union, on Hawkins’ be-
half, filed a contractual grievance protesting the discharge.
Subsequently, pursuant to an agreement between Respondent
and the Union, Respondent reinstated Hawkins after he com-
pleted a drug/alcohol rehabilitation program. As a part of this
agreement, Hawkins agreed to subject himself to random
testing for drugs for 1 year. The year expired during the
summer of 1988.
On June 29, 1988,2 Hawkins was again discharged, this
time for excessive absenteeism. Union Business Representa-
tive William Buccellato filed a contractual grievance against
Respondent protesting the discharge and when the grievance
was submitted to the employer-union bipartite panel the
panel deadlocked, thus the grievance was then submitted to
an impartial arbitrator pursuant to the terms of the contrac-
tual grievance-arbitration procedure. On October 27, the day
of the scheduled arbitration hearing, Respondent and the
Union, with Hawkins’ approval, entered into a settlement
agreement which, among other things, provided for the fol-
lowing: Rescinded Hawkins’ discharge and provided for his
reinstatement effective October 28; Hawkins’ absence from
work during the period of June 29 through September 1 was
to be treated as a disability leave of absence for which he
was entitled to all contractual disability benefits;3 Hawkins
was to be issued a ‘‘Final Warning Letter’’ under the Re-
991SAFEWAY STORES
4 It is undisputed that on October 27 Respondent’s representatives proposed
as a part of the settlement agreement that Hawkins be required to agree to
random drug testing. It is also undisputed that the Union’s representatives ob-
jected to this requirement which was dropped by Respondent.
5 The term ‘‘unauthorized absence,’’ as defined by Industrial Relations De-
partment Supervisor Walls, is a day when the employee is scheduled to work
and fails to show up for work. 6 Hawkins did not deny that on December 13 he gave Walls a doctor’s note.
spondent’s ‘‘Attendance Control Program’’ which would re-
main in force and effect through December 31; Hawkins was
to be reinstated ‘‘with two days sick leave accrual on the
books’’; and, on his reinstatement, Hawkins was required to
complete a drug/alcohol rehabilitation program as detailed in
the settlement.4 Present for the Union during the negotiation
of the settlement agreement was its lawyer and Union Rep-
resentative Buccellato. Present for Respondent, among others,
was Industrial Relations Supervisor Susan Walls.
The employee attendance calendar maintained by Re-
spondent at the distribution center for Hawkins shows that
following his October 28 reinstatement, during October, No-
vember and December, he was absent from work as follows.
In October he had an ‘‘unauthorized absence’’ on Monday,
October 31.5 In November Hawkins had unauthorized ab-
sences on Saturday, November 5, and Friday, November 11,
and was also absent on Wednesday, November 23, and
Wednesday, November 30, but notified Respondent he was
sick on the last 2 of those days and requested sick leave pay
for his November 23rd absence. In December Hawkins had
an unauthorized absence on Sunday, December 11, and also
was absent on Friday, December 1, Wednesday, December 7,
and Friday, December 9, but notified Respondent he was sick
on the last 3 of those days and wanted to be paid sick leave
for those absences.
Hawkins testified, without contradiction, that for all of his
above-described absences, except possibly one, he had a
written medical excuse from his physician which he sub-
mitted to whatever supervisor or dispatcher was on duty
when he returned to work after his absence. However, as de-
scribed infra, under Respondent’s attendance control program
an employee’s absence is not regarded as an excused absence
even though it is documented by a written excuse from the
employee’s physician.
Under Respondent’s attendance control program none of
Hawkins’ above-described absences were excused, they were
all unexcused absences. Respondent’s attendance control pro-
gram mandates that all unexcused absences must be recorded
and that if an employee accumulates three unexcused ab-
sences within a 6-month period, the employee will be issued
a final warning letter and if the employee accumulates a
fourth unexcused absence during this 6-month period, the
employee will be terminated.
As described supra, when Hawkins was discharged by Re-
spondent in June for excessive absenteeism, he filed a griev-
ance protesting the discharge, and pursuant to an agreement
settling his grievance was reinstated on October 28 with a
final warning letter concerning his absences and was given
2 days of accrued sick leave. Pursuant to Respondent’s pol-
icy regarding accrued sick leave Hawkins would not accrue
a third day of sick leave until December 6. Therefore, ac-
cording to the attendance calendar maintained by Respondent
for Hawkins at the distribution center, supra, he could have
been discharged by Respondent for any one of his unauthor-
ized absences in October and November or December, none
of which were treated by Respondent as sick leave. He also
could have been discharged for his sick leave absence on
November 2 because he had used up his 2 days of accrued
sick leave by that date, and also could have been discharged
on December 9 as he had used up his third day of accrued
sick leave on December 7.
Susan Walls, a supervisor in Respondent’s industrial rela-
tions department, testified that employees are regularly termi-
nated for accumulating an unexcused absence within the
same 6-month period after they receive a final warning letter.
She further testified that even though each employee’s case
is reviewed she was not aware of any case where Respondent
did not discharge an employee under those circumstances.
The only evidence presented to explain why Hawkins was
not, under Respondent’s attendance control program, dis-
charged in either October, or November or early December,
when he incurred unexcused absences after having been
issued a final warning letter, was Walls’ testimony set forth
below.
Walls testified she learned Hawkins was in trouble be-
cause of his absenteeism, when during the first week of De-
cember, prior to December 6, someone employed at Re-
spondent’s recordkeeping facility in Fremont, California,
telephoned her to determine if Hawkins, as he claimed, was
eligible to be paid for 2 days of accrued sick leave. Walls
told this person about the October 27 grievance settlement
which had awarded Hawkins 2 days of accrued sick leave.
Walls further testified that in answering this inquiry she
looked at the employee attendance calendar maintained at the
distribution center for Hawkins and observed, as described
supra, he had been absent several days since his October 28
reinstatement and probably should have been terminated be-
cause of those absences but observed Respondent had
‘‘missed’’ those absences and concluded that because of the
‘‘timeliness factor’’ under the governing collective-bar-
gaining agreement, it was too late at that time to terminate
Hawkins for his past absences.
Prior to testifying about reviewing Hawkins’ absenteeism
record during the first week of December, Walls had testified
that on December 14 she reviewed Hawkins’ absenteeism
record under the following circumstances: on December 13
when she happened to be in the vicinity of the drivers’ room,
Hawkins handed her a doctor’s note concerning his Decem-
ber 11 absence;6 Walls informed him it was not her responsi-
bility to file such notes, but testified that she took the note
in view of the fact she had been involved with his prior ter-
mination for excessive absenteeism; and, the next day she
gave the doctor’s note to the clerical employee who handled
such matters and testified that at that time,
I was made aware that Hawkins had an absentee prob-
lem. I was aware that he could possibly be out of sick
leave, and even though he had a doctor’s note that he
handed me, that would be considered an unexcused ab-
sence and that he would be subject to termination.
As I have noted supra, Walls later testified she had been
made aware of Hawkins’ absenteeism problem more than a
week earlier.
Walls testified that when she discovered on December 14
that Hawkins could possibly be subject to termination for ex-
992 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cessive absenteeism, she immediately notified Truck Man-
ager Will Rollins that Hawkins had been absent the prior
Sunday, that he had given her a doctor’s excuse for the ab-
sence, but was probably out of sick leave and that if this was
true, they needed to review his situation because under the
terms of the settlement of his discharge grievance, Hawkins
had received a final warning letter for his absenteeism and
one more unexcused absence would terminate him.
On December 14, shortly after her conversation with Rol-
lins, Walls and John Flanigan, the manager of the distribu-
tion center, testified that, in Rollins’ presence, Walls spoke
to Flanigan about Hawkins. They testified that Walls in-
formed Flanigan Respondent had a potential problem with
Hawkins, that he probably had an unexcused absence, and if
this was true that Walls and Rollins would recommend he be
terminated, but they first needed to verify his attendance
record with Respondent’s recordkeeping center in Fremont,
California, because, as Walls testified, she explained to
Flanigan,
there had been a mix up on the sick leave, and that also
when Rollins and [Walls] earlier that morning had
looked at [the Richmond distribution center’s] internal
records that there had been a mistake on the Company’s
part [and t]hat Frank had, in fact been absent several
times and [Walls and Rollins] wanted to make sure that
we did not make another mistake.
Walls and Rollins advised Flanigan that Hawkins’ attendance
calendar showed he had been absent for 9 days during the
approximately 6 weeks he had been employed since his rein-
statement. Rollins stated that in view of Hawkins’ past prob-
lem with drugs, Hawkins might be having a drug problem
since one of the danger signs of drug abuse was absenteeism.
Rollins suggested Hawkins be required to take a drug test,
Flanigan agreed with this suggestion, and it was decided that
if Hawkins came to work that day he was to be tested for
drugs by Paul Latoures, the distribution center’s safety driver
supervisor. It was also decided, according to the testimony
of Walls and Flanigan, that Walls would contact Respond-
ent’s recordkeeping center in Fremont to verify whether, as
indicated by the attendance calendar maintained at the dis-
tribution center, Hawkins in fact had no more accrued sick
leave available at the time of his December 11 absence.
Later, on December 14, Rollins spoke to Latoures and in-
structed him to give Hawkins a drug test when Hawkins re-
ported for work that day at 4:30 p.m. Rollins explained that
because of Hawkins’ poor attendance record and because of
Hawkins’ past history of drug abuse, that Rollins wanted to
make sure Hawkins was not driving under the influence of
drugs. Latoures asked what Rollins wanted him to do if
Hawkins refused to take the drug test. Rollins instructed
Latoures to suspend Hawkins pending further investigation if
he refused to take the test.
During the time material herein the parties’ collective-bar-
gaining agreement contained the following ‘‘substance abuse
program’’ which covered Hawkins and which, with respect
to drug testing, in pertinent part, provided:
In cases where the Company has probable cause to be-
lieve that an employee is under the influence of alcohol
and/or drugs, it may require the employee to provide a
urine specimen for laboratory testing. ‘‘Probable cause’’
means a clear indication based on objective evidence
and based on specific personal observations by a super-
visor or other company management personnel that can
be described concerning the appearance, behavior,
speech or breath odor of the employee. The employee
is requested to sign a consent form authoring a collec-
tion of a specimen and authorizing the release of the
test results to the Company. A refusal to cooperate
and/or to provide a timely specimen will constitute a
presumption of intoxication and the employee will be
subject to discharge.
On December 14 at 4:30 p.m., when Hawkins reported for
work, he was called to the office of Safety Driver Supervisor
Latoures and, in the presence of Truck Driver Supervisor
Ron Sundrud, Latoures told Hawkins that Rollins had left in-
structions for Hawkins to take a drug test. Latoures explained
to Hawkins that because of the excessive number of days
Hawkins had been absent from work that Rollins thought he
was using drugs again. Latoures, in this respect, showed
Hawkins the attendance calendar maintained for him at the
distribution center which showed he had been absent 9 days
since his reinstatement. Hawkins replied he had been absent
due to the physical problem he was having with his kidney,
that Respondent knew about that problem, and that he had
submitted doctor’s excuses for most of his absences.
Latoures replied that the doctor’s excuses did not change
things, that Rollins wanted him to take a drug test.
Hawkins at this point asked for representation by Union
Business Representative Buccellato. Hawkins explained to
the supervisors that his reason for requesting Buccellato’s
presence was that during the negotiation of the October 27
grievance settlement, which resulted in his reinstatement, Re-
spondent’s representatives had unsuccessfully sought to re-
quire random drug testing as a condition of his reinstatement
and that Buccellato, who was present during the negotiations,
was familiar with that aspect of the settlement. Latoures,
however, refused to telephone Buccellato at the Union’s of-
fice and gave Hawkins two reasons for his refusal:
Buccellato probably would not be there so late in the day,
4:45 p.m.; and, even if he was there, Latoures and Sundrud,
whose normal work shift ended at 4 p.m., did not intend to
sit around and wait for Buccellato to travel the distance be-
tween the Union’s office and Respondent’s distribution cen-
ter, a distance of approximately 27 miles. Hawkins stated he
thought someone would be at the Union’s office whom he
could talk to about taking the drug test, but Latoures refused
to telephone the Union’s office. Latoures indicated that re-
gardless of whom Hawkins spoke to at the Union’s office,
that Rollins intended to have him take a drug test.
Hawkins at this point asked that he be permitted to have
a union steward present as his union representative. Sundrud
responded by suggesting Hawkins take the drug test and
grieve later. Hawkins replied he wanted some form of union
representation. Sundrud answered that because of the time of
day there was no union shop steward available. Hawkins
again asked Latoures to telephone Buccellato. Latoures again
refused to do this. Hawkins asked where the management
people were who were familiar with the terms of the settle-
ment which had resulted in his reinstatement. He was in-
formed by Latoures they were not present at the facility.
Hawkins reiterated his request for Buccellato and Latoures
993SAFEWAY STORES
7 Latoures and Sundrud testified in effect they did not word their offer of
representation to Hawkins in terms of a union steward or a union representa-
tive, but worded it in terms of another available employee. Also, from their
testimony, it is clear that neither Latoures nor Sundrud were thinking in terms
of a union steward or a union representative when they offered Hawkins his
choice of available persons as his representative, but were thinking in terms
of simply another employee. Indeed, Latoures admitted that as far as he was
concerned, ‘‘a driver would be a union representative, as [he] understood it’’
for the purpose of Respondent’s policy of affording union representation for
employees during investigative interviews.
8 Supervisors Latoures and Sundrud were not going to question Hawkins
about alleged misconduct, as is usually the case during an investigatory inter-
view, but were going to require him to take a drug test and supervise the tak-
ing of the drug test. I note that on the four occasions in the past when super-
vision conducted the usual type of investigatory interview with Hawkins, that
each time, without Hawkins’ request, supervision had already made arrange-
ments for a union representative to be present in the room for the interview
before Hawkins even entered the room. Respondent offered no evidence to ex-
plain its deviation from this practice, when on December 14 it summoned
Hawkins to Safety Supervisor Latoures’ office to take the drug test. Under the
circumstances, it is not unreasonable to infer that Respondent’s supervisors on
December 14 believed that due to the unusual nature of the December 14
interview, which did not require that they personally interrogate Hawkins, that
Hawkins was not entitled to union representation.
9 Sundrud testified that on December 14, during the time material, there was
no truckdriver union steward available at the distribution center. Latoures and
Sundrud further testified in effect that neither one had any idea whether any
of the union stewards employed at the distribution center in other departments,
i.e., warehouses, were available at that time. The record reveals that Respond-
ent, in its statement of position submitted to the Board’s Regional Director
during the investigation of this case, stated that on December 14, during the
time material, Union Steward Parsons was available to act as Hawkins’ rep-
resentative. However, Sundrud testified Parsons was employed on the first
shift and because of this it was doubtful he was available on December 14
at 4:45 p.m.
reiterated his refusal to telephone Buccellato and also refused
to provide Hawkins with representation by a union steward
who might have been available at the facility.
The meeting concluded with Latoures informing Hawkins
that Rollins had left instructions for Hawkins to take a drug
test or be suspended. Hawkins stated that without union rep-
resentation he would not agree to take the drug test. Latoures
advised Hawkins that because of his refusal to take the drug
test that he was suspended from work, pending a further in-
vestigation. The record reveals that Hawkins on December
14 was in fact suspended from work because of his refusal
to take the drug test, pending further investigation (Tr. pp.
135–137; G.C. Exh. 4).
The aforesaid description of Hawkins’ December 14 met-
ing with Latoures and Sundrud is based on Hawkins’ testi-
mony and the testimony of Latoures and Sundrud only inso-
far as Latoures’ and Sundrud’s testimony was consistent with
Hawkins. I considered that Latoures’ and Sundrud’s testi-
mony contradicted Hawkins’ in these respects: Latoures,
whose testimony was substantially corroborated by Sundrud
in this respect, testified that Latoures began the interview by
advising Hawkins they intended to ask him to do something
that might require ‘‘representation’’ and asked if he wanted
‘‘representation’’ and Hawkins declined the offer; Latoures,
whose testimony was not corroborated by Sundrud in this re-
spect, testified Hawkins did not ask him to telephone the
Union’s office; and, Latoures and Sundrud testified that
when they rejected Hawkins’ request that Buccellato be
present as his representative, that they offered Hawkins the
option of being represented by any other person of his choice
who was presently available at the distribution center,7 but
Hawkins insisted on being represented only by Buccellato. I
rejected Latoures’ and Sundrud’s aforesaid testimony and
credited Hawkins’ description of what occurred because
Hawkins, whose testimonial demeanor was good, testified
about this interview in a straightforward, sincere, and candid
manner, whereas the testimonial demeanor of Latoures and
Sundrud was poor.
In concluding Latoures and Sundrud refused Hawkins’ re-
quest for a union steward, I considered Respondent’s conten-
tion that it was implausible for them to have engaged in such
conduct because it was contrary to Respondent’s policy of
providing union representation to employees during inves-
tigatory interviews. However, their deviation from company
policy may have been the result of the unusual nature of
Hawkins’ investigatory interview,8 or their belief that a union
steward was not available to act as Hawkins’ representative,9
or for some other reason. In any event, whatever the reason
for Latoures’ and Sundrud’s deviation from Respondent’s
usual policy, for the reasons set forth supra, I am persuaded
that Hawkins testified truthfully when he testified that after
refusing to telephone Union Representative Buccellato for
him that Latoures and Sundrud then refused his further re-
quest for a union steward to act as his representative.
I have also considered and rejected Respondent’s conten-
tion that Hawkins’ testimony that the supervisors refused his
request for a union steward was not believable because of
Hawkins’ failure to mention this to Union Representative
Buccellato later that evening and because of Buccellato’s
failure to present this evidence to the bipartite panel which
considered the grievance protesting Hawkins’ discharge. It is
not surprising that when Hawkins spoke to Buccellato on
December 14 about what had occurred earlier that day, that
Hawkins only mentioned the refusal of the supervisors to
contact Buccellato and made no mention of their refusal to
provide him with a union steward. Thus, as described in de-
tail supra, Hawkins felt that in order to be intelligently rep-
resented during the December 14 drug testing interview he
needed to consult with Buccellato because of Buccellato’s
knowledge of Hawkins’ particular situation and, in view of
this belief, Hawkins repeatedly during the December 14
interview asked that the supervisors telephone Buccellato at
the Union’s office. It was only after his request for
Buccellato was turned down that as a last resort he asked for
union representation in the form of a union steward. Under
the circumstances it was not surprising that when Hawkins
spoke to Buccellato about what went on during the interview
that he failed to mention his request for a union steward.
And, with respect to the failure of Hawkins and Buccellato
to present evidence to the bipartite panel about Hawkins’ re-
quest for a union steward to represent him during the De-
cember 14 interview, it was not relevant to the issues being
considered by the panel; indeed, there is no evidence that the
panel was even advised that Hawkins had unsuccessfully
sought the representation of Union Representative Buccellato.
On December 19 Truck Manager Rollins, by letter, in-
formed Hawkins he was terminated. The termination letter,
in pertinent part, read as follows: ‘‘Because of your unex-
cused absence on Sunday, December 11, 1988, your employ-
ment with [Respondent] has been terminated in accordance
with Attendance Control Policy and the Arbitrator Return to
Work Agreement.’’
On either December 21 or 22 Union Representative
Buccellato spoke separately to Truck Manager Rollins and
994 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 In its answer to the complaint, as set forth in its fifth affirmative defense,
Respondent alleged that the ‘‘Charging Party is estopped by the doctrine of
res judicata and collateral estoppel from bringing or maintaining this action,
having filed a grievance, presented his case and received a binding result on
January 26, 1989, which result is now final.’’ This affirmative defense refers
to the grievance filed on Hawkins’ behalf by the Union protesting his dis-
charge under the parties’ contractual grievance-arbitration machinery, which
was considered by the bipartite panel established by said machinery to resolve
such disputes, and which panel unanimously denied the grievance. In support
of its fifth affirmative defense, Respondent argues that under the doctrine of
res judicata and collateral estoppel the bipartite panel’s determination that
Hawkins was discharged for cause, excessive absences from work, precludes
the Board in this proceeding from finding he was discharged for refusing to
participate in an investigatory interview conducted in derogation of his Sec.
7 right to a union representative at said interview. Respondent cites no legal
authority for the novel proposition that under the doctrine of either collateral
estoppel or res judicata the Board is precluded in an unfair labor practice pro-
ceeding from making findings of fact or conclusions of law contrary to those
made by an arbitration panel pursuant to the parties’ contractual grievance-ar-
bitration machinery. The lack of authority is not surprising because the law
is settled that the Board will defer to an arbitration award only if that award
complies with the standards set forth by the Board in Spielberg Mfg. Co., 112
NLRB 1080 (1955), and its progeny. Counsel for Respondent at the start of
the hearing in this case specifically stated that by virtue of its fifth affirmative
defense Respondent was not asking the Board to invoke its Spielberg doctrine
and defer to the arbitration panel’s award pursuant to that doctrine. In view
of this representation, the question of whether deferral to the arbitration pan-
el’s award would be appropriate under the Board’s Spielberg doctrine was not
an issue in this proceeding and was not litigated. It is for these reasons that
Respondent’s fifth affirmative defense lacks merit.
11 The complaint does not, as contended in the General Counsel’s
posthearing brief, further allege that Respondent violated Sec. 8(a)(1) ‘‘by de-
nying Hawkins’ request to consult with a union representative prior to partici-
pating in an investigating interview which he reasonably believed would result
in disciplinary action . . . .’’ Nor, as contended in Respondent’s posthearing
brief, does the complaint allege Respondent ‘‘violated Sec. 8(a)(1) and (5) of
the [Act] by denying [Hawkins’] request for a union representative at a discus-
sion in which Respondent directed [Hawkins’] to submit to a drug screen.’’
Rather, as stated above, the complaint in substance alleges only that Respond-
ent violated Sec. 8(a)(1) by discharging Hawkins for refusing to participate in
an interview conducted in derogation of his Sec. 7 right to consult with a
union representative.
Distribution Center Manager Flanigan about Hawkins’ termi-
nation. Rollins and Flanigan each told Buccellato that Haw-
kins had been terminated on account of his absenteeism.
Buccellato then questioned them about Respondent’s reason
for having Hawkins take the drug test. They each responded
that because of Hawkins’ poor attendance record the Re-
spondent suspected he was once again using drugs.
Regarding the drug test, Rollins told Buccellato: ‘‘I like
Frank he’s a good worker, and if he had tested clean, we
probably would not have to fire him.’’ Buccellato replied he
felt Rollins was not telling the truth when he claimed Haw-
kins was fired for absenteeism.
Regarding the drug test, Flanigan told Buccellato: ‘‘If he
tested clean we would not have had a problem [referring to
Hawkins’ absenteeism].’’ Buccellato replied by asking ‘‘If
that’s the case let’s send him down for a drug test right now
and if he’s clean put him back to work.’’ Flanigan thought
about it for a minute, then replied, ‘‘No I don’t think we can
do that.’’
The aforesaid description of Buccellato’s conversations
with Rollins and Flanigan are based on Buccellato’s testi-
mony. Rollins and Flanigan denied they indicated to
Buccellato that if Hawkins and taken and passed his drug
test, he would not have been terminated for absenteeism. I
credited Buccellato’s testimony, rather than Rollins’ and
Flanigan’s, because Buccellato’s testimonial demeanor,
which was good, was better than Rollins’ and Flanigan’s
which was not so good.
Soon after Hawkins’ December 19 discharge, Union Rep-
resentative Buccellato filed a grievance under the governing
collective-bargaining contract grievance-arbitration machinery
protesting the discharge. Subsequently, the grievance was
considered by the bipartite panel which, as described supra,
is part of the contractual grievance-arbitration machinery.
The panel unanimously denied the grievance. In doing so the
panel did not consider the unfair labor practice issue pre-
sented in the instant proceeding. Respondent’s position be-
fore the panel was that Hawkins had been discharged for his
absenteeism. The Union’s position was that this reason was
not the real reason for his discharge, that the real reason was
Hawkins’ refusal to take the drug test, that when Respondent
realized it did not have grounds under the governing contract
to discharge Hawkins for refusing to take the drug test, and
realized that the settlement agreement under which Hawkins
had been reinstated did not provide for random drug testing,
Respondent seized on Hawkins’ record of absenteeism to jus-
tify his discharge.
In support of its case-in-chief regarding its reason for dis-
charging Hawkins’ and its conduct following Hawkins’ De-
cember 14 refusal to take the drug test, Respondent called
as witnesses Distribution Center Manager Flanigan, Trucking
Department Manager Rollins, and Industrial Relations Super-
visor Walls. Their testimony, when considered in its entirety,
if credible, establishes the following. On December 15 Rol-
lins told Flanigan that Hawkins had been suspended, pending
an investigation, for his refusal to take the drug test. In re-
sponse to Flanigan’s inquiry, Rollins advised Flanigan they
had not received verification from the record center in Fre-
mont about Hawkins’ absenteeism record. Flanigan instructed
Rollins to check that information out so they could decide
‘‘which way they were going to go.’’ Later the same day,
Walls was notified by the record center that Hawkins had
been out of accrued sick leave on Sunday, December 11,
which meant that his absence that day was unexcused, thus
pursuant to Respondent’s attendance control program he was
subject to termination. Walls relayed this information to
Flanigan with a recommendation that Hawkins be discharged
for violating Respondent’s attendance control program. After
considering the matter and having Walls recheck Hawkins’
attendance record to be sure there had been no mistake, on
December 16 Flanigan decided to discharge Hawkins and
made this decision solely because of Hawkins’ absence on
December 11 which mandated his discharge under the Re-
spondent’s attendance control program.
B. The Questions Presented and the Applicable
Legal Principles10
The complaint alleges Respondent violated Section 8(a)(1)
of the Act by discharging the Charging Party, Frank Haw-
kins, on December 19 because he refused to participate on
December 14 in an interview with supervision prior to con-
sulting with a union representative, when he reasonably be-
lieved the interview would result in disciplinary action being
taken against him.11 Thus, the essential questions for deci-
sion are as follows: During his December 14 interview with
Supervisors Latoures and Sundrud, when Hawkins asked for
union representation, was he exercising a right protected by
Section 7 of the Act and, if so, was he discharged on De-
cember 19 because he exercised that statutory right. See Gar-
995SAFEWAY STORES
ment Workers v. Quality Mfg. Co., 420 U.S. 276 (1975); Salt
River Valley Water Users’ Assn., 262 NLRB 970 (1982);
Spartan Stores, 235 NLRB 522 (1978).
In NLRB v. J. Weingarten, 420 U.S. 251 (1975), the Su-
preme Court affirmed, as a permissible construction of the
Act, the Board’s finding that Section 7 of the Act embodies
a statutory right for an employee to refuse to submit without
union representation to an interview by employer representa-
tives that the employee reasonably fears may result in dis-
cipline. In Salt River Valley Water Users’ Assn. and Spartan
Stores, the Board held that employers violated Section
8(a)(1) of the Act for discharging employees because the em-
ployees exercised their Weingarten rights.
In determining whether the discharge of an employee is
motivated by an employees’ exercise of his or her
Weingarten rights, the test for assessing the employer’s moti-
vation is the test articulated by the Board in Wright Line,
251 NLRB 1083 (1980), which in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983), was approved by
the Supreme Court. Under this test when it is shown, ini-
tially, that the employee’s activity protected by the Act was
a motivating factor in the employer’s discharge decision, the
discharge is an unfair labor practice unless the employer
demonstrates, as an affirmative defense, that it would have
taken the same action for legitimate reasons, absent the em-
ployee’s protected conduct. NLRB v. Transportation Manage-
ment Corp., supra at 402–403 (1983). See also Communica-
tions Workers Local 5008 (Illinois Bell) v. NLRB, 784 F.2d
847 (7th Cir. 1986) (‘‘if the employer fires the employee in
part because he requested the assistance of his union . . . the
Board will use its Transportation Management policy. The
employee wins reinstatement with backpay unless the em-
ployer persuades the Board that it would have fired the em-
ployee even without the improper motive.’’).
C. Discussion and Conclusions
On December 14 Hawkins was called into Safety Super-
visor Latoures’ office for the purpose of being given a drug
test by Latoures, with Supervisor Sundrud acting as a wit-
ness. Hawkins, on being informed of the purpose of the
meeting, asked for the presence of Union Representative
Buccellato or that he at least be allowed to consult with
Buccellato, or whomever was at the Union’s office, over the
telephone. Latoures and Sundrud denied these requests. Haw-
kins then asked to be allowed to have a union steward
present as his representative during the interview. This re-
quest was also denied, with Supervisor Sundrud explaining
to Hawkins that at that time of the day a union steward was
not available. Later during the meeting Safety Supervisor
Latoures refused to provide Hawkins with representation by
any of the union stewards who might have been available at
the facility.
It is clear that on December 14 when Hawkins was in-
formed that the purpose of his interview with Supervisors
Latoures and Sundrud was to have them administer a drug
test, Hawkins had every reason to fear that the interview, the
drug test, could result in disciplinary action. In 1987 Haw-
kins had been discharged because Respondent believed he
had been taking drugs. More recently, under the terms of the
settlement agreement which resulted in his reinstatement to
work in October, he had been enrolled in a drug/alcoholic re-
habilitation program and under the terms of Respondent’s
‘‘Substance Abuse Program,’’ if, in taking the drug test he
had tested positive, he was subject to discipline.
Respondent at the hearing in this case conceded that when
Hawkins on December 14 requested union representation that
at that point in time he had reason to believe he might be
subject to discipline as the result of the interview (Tr. pp.
190–191). However, in its posthearing brief Respondent ar-
gues:
Although Respondent concedes that Charging Party rea-
sonably could have believed that at some point dis-
cipline would have been imposed, Respondent does not
concede that the Weingarten right attached at the time
of the discussion between Charging Party and Respond-
ent’s supervisors. The sole purpose of the discussion
was to instruct Charging Party to submit to the drug
screen. There was no interrogation, factual or discre-
tionary determination to be made during the discussion
. . . . Here, no representative was needed for Charging
Party to receive an instruction regarding the drug
screen.
Respondent appears to take the position that because super-
vision did not personally intend to interrogate Hawkins about
his drug use but were going to secure his consent to take a
drug test, instruct him on how to take the test, and supervise
the test, that Hawkins had no right to union representation
under Section 7 of the Act. This argument lacks merit. Re-
spondent has not cited a single Board or Court case which
supports this novel argument. The lack of authority is not
surprising inasmuch as the purpose of an employer’s inves-
tigatory interview concerning the use of drugs and the pos-
sible adverse effects of such an interview on an employee’s
employment are the same regardless of whether the employ-
er’s interrogation of the employee during the interview is
done personally by supervision or by means of a drug test.
Also without merit is Respondent’s further contention, set
forth in its answer to the complaint as its third affirmative
defense, that ‘‘‘Weingarten rights’ are not applicable, and
this complaint may not be based on such alleged rights’’ be-
cause the ‘‘Charging Party is acting as an individual and that
Charging Party’s Union is not a party.’’ There is no authority
to support this novel proposition which squarely conflicts
with the Supreme Court’s holding in Weingarten that the
Section 7 right to have a union representative present during
an investigatory interview is vested in the individual em-
ployee being interviewed, as distinguished from his union
representative (402 U.S. at 256–260).
Having found that on December 14 when Hawkins during
his interview asked supervision for union representation, he
had reason to fear the interview could result in disciplinary
action, I further find that when Hawkins made his request for
union representation to supervision that he was exercising a
right protected by Section 7 of the Act. In so concluding I
have considered that initially Hawkins insisted on a particu-
lar union representative, Buccellato, who was not available at
the distribution center at the time of the interview. However,
when supervision refused this request Hawkins then re-
quested the presence of a union steward. Assuming that
under the circumstances of this case that Hawkins’ request
996 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 See generally Coca-Cola Bottling Co. of Los Angeles, 227 NLRB 1276
(1977); Roadway Express, 246 NLRB 1127 (1979); Pacific Gas & Electric
Co., 253 NLRB 1143 (1981); and Montgomery Ward & Co., 273 NLRB 1226
(1984).
13 As I have noted supra, at the time there were no truckdriver stewards
available at the distribution center to represent Hawkins, but there may have
been other union stewards, employed in other sections of the distribution cen-
ter, available to represent Hawkins.
14 I have considered that the complaint does not allege Hawkins’ December
14 suspension violated the Act, but only alleges that his December 19 dis-
charge violated the Act. However, ruling on the legality of Hawkins’ suspen-
sion does not violate any principles of due process because the legality of his
suspension is inextricably intertwined with the legality of his discharge, thus
affording Respondent ample notice that the legality of Hawkins’ suspension
would be an essential issue in this proceeding. Moreover, the matter was fully
litigated.
15 I note Respondent has never contended that it discharged Hawkins be-
cause it believed he was under the influence of drugs. Rather, as expressed
to Hawkins and as expressed in this proceeding, Respondent’s position is that
its sole reason for discharging Hawkins was that his unexcused absence on
December 11 constituted a dischargeable offense under the Company’s attend-
ance control program.
for Buccellato was not a valid one,12 his further request for
a union steward to represent him was a valid one encom-
passed by Section 7 of the Act. For, in the absence of a
union steward at the distribution center at the time of the De-
cember 14 interview, Respondent was obligated to respect
Hawkins’ request for assistance, even if it meant delaying the
interview (Super Valu Stores, 236 NLRB 1581 (1978)), or,
if there was a union steward available Respondent was obli-
gated to provide Hawkins with that steward prior to pro-
ceeding with the interview. 13
Having found that when Hawkins during his December 14
interview with supervision asked to be represented by a
union steward, he was exercising a right protected by Section
7 of the Act, the remaining question is whether he was dis-
charged on December 19 because he exercised that statutory
right. For the reasons below, I am persuaded the General
Counsel made a prima facie showing that this was what oc-
curred and that Respondent failed to establish it would have
discharged Hawkins for legitimate reasons even absent his
protected conduct.
That a motivating factor for Respondent’s decision to dis-
charge Hawkins was Hawkins’ exercise of his statutory right
during the December 14 interview to refuse to participate in
that interview without a union representative, is established
by the following considerations. As I have found supra, on
December 14 when Hawkins refused to participate in the
interview, to take the drug test, without representation by a
union steward, he was abruptly suspended from work be-
cause of his refusal to participate in the interview, to take
the drug test without union representation. It is clear, there-
fore, that Hawkins was suspended from work on December
14 for refusing to participate in an investigative interview
conducted in derogation of his Section 7 right to refuse to
participate in that interview without union representation.
Spartan Stores, supra; Salt River Valley Water Users’ Assn.,
supra. Accordingly his suspension violated Section 8(a)(1).14
Hawkins’ discharge came hard on the heels of his unlawful
suspension and, as I have found infra, the reason advanced
by Respondent to justify his discharge was not the real rea-
son for the discharge. It for these reasons that I am per-
suaded the General Counsel has established that a motivating
factor in Respondent’s decision to discharge Hawkins was
Hawkins’ exercise of his Weingarten rights during the De-
cember 14 investigatory interview. The burden, therefore,
shifted to the Respondent to establish it would have dis-
charged Hawkins even if Hawkins had not exercise his
Weingarten rights during the December 14 investigatory
interview.
As described in detail supra, Respondent defends its dis-
charge of Hawkins on the ground that under its attendance
control program he had been issued a final warning letter and
on December 11 had an unexcused absence from work
which, in view of the final warning letter, subjected him to
discharge under the attendance control program.15 In this re-
gard, as described in detail supra, the record shows Hawkins
was previously discharged by Respondent in June for exces-
sive absenteeism and after filing a contractual grievance with
the Union protesting his discharge was reinstated by Re-
spondent on October 28 and, as part of the settlement of the
grievance which resulted in his reinstatement, was reinstated
with a final warning letter concerning his absenteeism and,
in view of this final warning letter, was subject to discharge
under the Company’s attendance control program when, on
December 11, he incurred an unexcused absence. However,
as is also described in detail supra, between his October 28
reinstatement and December 11 absence, Hawkins was absent
during October, November, and December on 8 different
workdays, most of which were unexcused absences, and be-
cause of this and the final warning letter which had been
issued to him on October 28, Hawkins was subject to dis-
charge under the Company’s attendance control program for
several of those absences, yet was not discharged.
The only evidence presented by Respondent to explain
why Hawkins was not discharged in October, November, or
December when he incurred the other unexcused absences,
prior to his December 11 absence, was the testimony of
Susan Walls, one of Respondent’s industrial relations depart-
ment’s supervisors. Walls, as described in detail supra, testi-
fied the reason Hawkins was not discharged because of his
previous unexcused absences in October, November, and De-
cember was that Respondent ‘‘missed’’ those absences and
that when early in December Walls became aware Hawkins
had incurred several unexcused absences in October, Novem-
ber and December, that by then it was too late for Respond-
ent to terminate him for any one of those absences because
of the ‘‘timeliness factor’’ under the governing collective-
bargaining agreement. For the reasons below, I reject Walls’
testimony in its entirety.
Walls’ testimonial demeanor was poor; she did not im-
press me as an honest or reliable witness.
Walls’ testimony was not corroborated even though cor-
roboration should have been readily available. The supervisor
or supervisors responsible for monitoring Hawkins’ attend-
ance record were not called to corroborate Hawkins’ testi-
mony. Nor did Respondent produce the governing collective-
bargaining agreement or that section of the agreement which
supposedly made it untimely for Respondent to discharge
Hawkins early in December when it supposedly first became
aware of his unexcused absences.
Walls’ testimony that Respondent ‘‘missed’’ Hawkins’ un-
excused absences in October, November, and December was
inherently incredible. It is inconceivable that after agreeing
to reinstate Hawkins on October 27 after having discharged
him earlier for excessive absenteeism and conditioning his
997SAFEWAY STORES
16 I am persuaded the reason Respondent overlooked the several unexcused
absences incurred by Hawkins following his reinstatement on October 28 and
the reason its representatives indicated to Union Representative Buccellato that
Respondent would have overlooked Hawkins’ December 11 unexcused ab-
sence if he had taken and passed the December 14 drug test, was Respondent’s
knowledge that Hawkins was suffering from a serious and chronic kidney ail-
ment and that for all but perhaps one of his unexcused absences Hawkins had
submitted to supervision an excuse from his doctor.
17 In rejecting Respondent’s defense, I considered Walls’ and Flanigan’s tes-
timony that on December 14, prior to Hawkins’ refusal to take the drug test,
Walls recommended to Flanigan that Hawkins be terminated for his December
11 absence, if the Company’s recordkeeping center verified he lacked accrued
sick leave to cover that absence. I also considered the testimony of Walls,
Flanigan, and Rollins that subsequent to December 14 Respondent received
verification from the recordkeeping center that Hawkins had no accrued sick
leave, that Walls relayed this information to Flanigan with the recommenda-
tion Hawkins be discharged for violating the Company’s attendance control
program by virtue of his December 11 absence, and that Flanigan subsequently
decided to discharge Hawkins solely for this reason. I did not credit their testi-
mony because when Walls, Flanigan, and Rollins testified, their testimonial
demeanor was poor and because when viewed in the context of the whole
record, described supra, their testimony does not ring true.
18 I have not decided whether the December 14 interview was a Weingarten-
violative interview inasmuch as the complaint did not allege that as a violation
of the Act and it was not necessary for me to decide that issue in order to
decide whether, as alleged in the complaint, Respondent violated Sec. 8(a)(1)
of the Act by discharging Hawkins for refusing to participate in an interview
conducted in derogation of his Sec. 7 right to consult with a union representa-
tive. See Salt River Valley Water Users’ Assn., 262 NLRB 970 (1982).
19 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
reinstatement on his being issued a final warning letter con-
cerning his absenteeism, that Respondent’s supervisors would
have ‘‘missed’’ the fact that on his reinstatement Hawkins
incurred several unexcused absences which under the terms
of the reinstatement agreement would have subjected him to
discharge. In this respect it is highly significant that Walls
did not explain how it was that Respondent ‘‘missed’’ those
unexcused absences.
The inference that during October, November, and Decem-
ber Respondent did not ‘‘miss’’ Hawkins’ unexcused ab-
sences from work, but was aware of them and consciously
decided not to exercise its right to discharge him under its
attendance control program, is warranted by the fact that
shortly after Hawkins’ discharge Respondent’s representa-
tives admitted to Union Representative Buccellato that if
Hawkins had taken the drug test on December 14 and tested
negative, he would not have been discharged for his absen-
teeism. More specifically, as described in detail, supra, Truck
Department Manager Rollins told Buccellato he liked Haw-
kins and considered him to be a good worker and stated that
if Hawkins had passed the drug test Respondent ‘‘probably’’
would not have discharged him. Likewise, Distribution Cen-
ter Manager Flanigan informed Buccellato that if Hawkins
had passed the drug test, Respondent ‘‘would not have had
a problem’’ with his absenteeism.16
For all of the above reasons I reject Walls’ testimony that
Respondent ‘‘missed’’ the several unexcused absences in-
curred by Hawkins after his reinstatement and that by the
time Respondent became aware of them in early December
it was too late for Respondent to terminate him for any one
of those absences.
Considering that for several weeks prior to Hawkins’ re-
fusal on December 14 to take a drug test without union rep-
resentation, Respondent had excused his absences which
under the Company’s attendance control program subjected
him to termination; and, considering the admissions of Re-
spondent’s distribution center manager and trucking depart-
ment manager that if Hawkins had taken the December 14
drug test and tested negative that he would not have been
discharged on account of his December 11 absence from
work; I am persuaded Respondent failed to establish by a
preponderance of the evidence that it would have discharged
Hawkins for his December 11 absence even if Hawkins had
not exercised his statutory right to refuse to participate in the
December 14 investigatory interview without union represen-
tation.17
Having found the General Counsel established that a moti-
vating factor for Respondent’s decision to discharge em-
ployee Frank Hawkins on December 14 was Hawkins’ exer-
cise of his Weingarten rights during the December 14 inves-
tigatory interview and having further found that Respondent
failed to establish it would have discharged Hawkins for le-
gitimate reasons even if he had not exercised his Weingarten
rights during the December 14 interview, I conclude Re-
spondent has engaged in an unfair labor practice in violation
of Section 8(a)(1) of the Act by discharging Hawkins for re-
fusing to participate in an interview conducted in derogation
of his Section 7 right to a representative at said interview.18
THE REMEDY
Having found that Respondent violated Section 8(a)(1) of
the Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate the
policies of the Act.
Having found that Respondent suspended and then dis-
charged its employee Frank Hawkins in violation of Section
8(a)(1) of the Act, I shall order Respondent to offer Hawkins
immediate and full reinstatement to his former position of
employment or, if that position is no longer available, to a
substantially equivalent position, without prejudice to his se-
niority or other rights and privileges, and to make him whole
for any loss of pay he may have suffered by reason of Re-
spondent’s discrimination against him, with interest thereon,
to be computed in the manner prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), and New Horizons for the
Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended19
ORDER
The Respondent, Safeway Stores, Inc., Richmond, Cali-
fornia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or suspending any employee for refusing
to participate in an interview in derogation of the employee’s
Section 7 right to a representative at the interview.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Frank Hawkins immediate and full reinstatement
to his former position or, if that position no longer exists, to
a substantially equivalent position, without prejudice to his
seniority or any other rights and privileges previously en-
998 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
joyed, and make him whole, with interest, for any loss of
earnings he may have suffered in accordance with the provi-
sions set forth in the remedy section of the decision.
(b) Remove from its files any reference to the suspension
and discharge of Frank Hawkins on December 14 and 19,
1988, respectively, and notify him in writing that this has
been done and that evidence of his unlawful suspension and
discharge will not be used as a basis for future personnel ac-
tions against him.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its facility in Richmond, California, copies of
the attached notice marked ‘‘Appendix.’’20 Copies of the no-
tice, on forms provided by the Regional Director for Region
32, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT discharge or suspend any employee for re-
fusing to participate in an interview conducted in derogation
of the employee’s right to a representative at said interview.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL offer Frank Hawkins immediate and full rein-
statement to his former job or, if such job no longer exists,
to a substantially equivalent position, without prejudice to his
seniority or any other rights and privileges previously en-
joyed, and WE WILL make him whole for any loss of earnings
he may have suffered by reason of our discrimination against
him, plus interest.
WE WILL remove from our files any references to the sus-
pension of Frank Hawkins on December 14, 1988, and to his
discharge on December 19, 1988, and WE WILL notify him
in writing that this has been done and that evidence of his
unlawful suspension and discharge will not be used as a
basis for future personnel actions against him.
SAFEWAY STORES, INC.