Salt River Valley Water Users' Association

National Labor Relations Board - Board Decisions

Jul 16, 1982

262 N.L.R.B. 970 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Salt River Valley Water Users' Association and Tom
Herf. Case 28-CA-5785
July 16, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND JENKINS
On February 17, 1981, Administrative Law
Judge Jay R. Pollack issued the attached Decision
in this proceeding. Thereafter, Respondent Salt
River Valley Water Users' Association filed excep-
tions and a supporting brief, and the General Coun-
sel and the Charging Party filed briefs in response
to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs, and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge, as modified below, and to adopt his recom-
mended Order, as modified herein. 2
The Administrative Law Judge found that Re-
spondent unlawfully denied employee Herf's re-
quest for a union representative while questioning
him as to his absences; that Herf refused to answer
any questions, informing Respondent's officials that
the "interview" was unlawful; and that Respondent
discharged Herf because of his failure to answer
any questions. It is therefore clear that Herf was
disciplined for refusing to participate in an "inter-
view" conducted in derogation of his Section 7
right to a representative and that this refusal was
itself protected by Section 7. International Ladies'
Garment Workers' Union, AFL-CIO v. Quality
Manufacturing Co., 420 U.S. 276 (1975). Since Herf
was discharged for engaging in protected concert-
' Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
In his Decision, the Administrative Law Judge hypothesizes that, if
Herf, in the second meeting, had followed his union steward's advice and
answered Respondent's questions, and if Respondent's supervisors had
complied with Respondent's labor relations manager's advice and ques-
tioned Herf in the presence of a union representative prior to the dis-
charge, then the unlawful character of the first interview might have
been cured. However, since Herf was, in fact, discharged at the start of
the second meeting, we find it unnecessary to adopt the Administrative
Law Judge's hypothesis or pass on its validity in affirming the Adminis-
trative Law Judge's Decision.
a In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
ed activities, a make-whole remedy is appropriate.3
Further, given the Administrative Law Judge's
findings, there is no need to separate Respondent's
unlawful conduct into distinct violations of Section
8(a)(1).
AMENDED CONCLUSIONS OF LAW
We hereby affirm the Administrative Law
Judge's Conclusions of Law, as modified below:
Substitute the following for Conclusion of Law
3:
"3. Respondent has engaged in an unfair labor
practice in violation of Section 8(a)(1) of the Act
by discharging employee Tom Herf for refusing to
participate in an interview conducted in derogation
of his Section 7 right to a representative at said in-
tervieW."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Salt River Valley Water Users' Association, Phoe-
nix, Arizona, its officers, agents, successors, and as-
signs, shall take the action set forth in the said rec-
ommended Order, as so modified:
1. Substitute the following for paragraph l(a):
"(a) Discharging any employee for refusing to
participate in an interview in derogation of the em-
ployee's Section 7 right to a representative at said
interview."
2. Delete paragraph l(b) and reletter paragraph
l(c) as l(b).
3. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER JENKINS, concurring:
I agree with my colleagues that employee Tom
Herf was unlawfully discharged and that he should
be reinstated and awarded backpay, but I cannot
adopt my colleagues' supporting rationale. I do not
agree with the majority's conclusion that the first
interview between Herf and Respondent on March
20, 1980, was not violative of Herfs Weingarten
rights and that a make-whole remedy under Kraft
Foods is inappropriate.
s The Administrative Law Judge's discussion of Kraft Foods, Inc., 251
NLRB 598 (1980), in regard to the appropriate remedy is misplaced.
Unlike this case, where the discipline was imposed for Her's exercise of
his Sec. 7 rights, Kraft Foods involves the appropriateness of a make-
whole remedy where, following a Weingarten-violative interview, an em-
ployee was disciplined for the underlying conduct which was the subject
of the unlawful interview. N.LR.B. v. J. Weingarten, Inc., 420 U.S. 251
(1975). Here, Herf was not discharged for unexcused absences and Re-
spondent did not prove that Herf would have been so discharged in the
absence of his refusal to answer Respondent's questions.
262 NLRB No. 129
970
SALT RIVER VALLEY WATER USERS' ASSOCIATION
The majority concludes that the interview be-
tween Respondent and Herf was not an "inter-
view" within the meaning of Weingarten because,
following Respondent's denial of Herf's request for
union representation, Herf stated "no comment" in
response to Respondent's questions and stated that
the interview was unlawful. The majority, citing
Quality Manufacturing, concludes that Herfs con-
duct at the interview did not constitute "participa-
tion" in the interview and, therefore, Weingarten
does not come into play.
The majority's misplaced reliance on Quality
Manufacturing distorts the facts of this case and
weakens employees' rights under Weingarten. In
Quality Manufacturing an employee was discharged
for refusing to attend an interview with the compa-
ny president without union representation. That is
hardly the case here. The record clearly shows
that an interview took place in Respondent's office
at 3 p.m. on the afternoon of March 20. Immediate-
ly before the start of the interview, Herf requested
and was denied union representation. Thereafter,
he attended the meeting with several management
officials, stated that he thought the meeting was
unlawful, and, for 20 minutes, answered a series of
questions by stating "no comment." By holding
that this meeting was a non-interview, the majority
inexplicably reads Weingarten to require an em-
ployee to participate in some affirmative manner in
the interview before his Weingarten rights arise.
This places a new and unfounded burden on the
employee by making the right to union representa-
tion conditional not on whether the employee rea-
sonably believes that disciplinary action may result,
but on whether the employee meaningfully partici-
pates in the interview. This is a requirement which
was clearly not contemplated by the U.S. Supreme
Court when it stated: "Requiring a lone employee
to attend an investigatory interview which he rea-
sonably believes may result in the imposition of dis-
cipline perpetuates the inequality the Act was de-
signed to eliminate, and bars recourse to the safe-
guards the Act provided to 'redress the perceived
imbalance of economic power between labor and
management.' American Ship Building Co. v.
NLRB, 380 U.S. 300, 316 (1965)." N.L.R.B. v. J.
Weingarten, Inc., 420 U.S. at 262. (Emphasis sup-
plied.)
Contrary to the majority's interpretation, Wein-
garten provides simply that an employer violates
Section 8(a)(1) by denying an employee's request
that a union representative be present at an inter-
view which the employee reasonably believes
might result in disciplinary action. To hold that no
interview occurs and therefore no Weingarten right
arises until after an employee responds to questions
in some meaningful way misreads Weingarten and
needlessly dilutes employees' rights. The record in
this case leaves little doubt that Herf had reason-
able grounds to believe that the meeting might
result in disciplinary action. As found by the Ad-
ministrative Law Judge, on March 20 Herf's super-
visor asked him to report to Respondent's office
rather than his work station and Herf's steward re-
lated to him that Respondent wanted to discuss
Herf's absences from work on March 13 and 14. It
is clear, therefore, that Respondent violated Herfs
rights under Weingarten by denying his request for
a union representative at the first meeting on
March 20.
Furthermore, I cannot agree with the majority's
conclusion that a Kraft Foods make-whole remedy
is inappropriate. The majority's conclusion that
Herf was not discharged for the conduct which
was the subject of the interview ignores the facts
and the Administrative Law Judge's findings. The
Administrative Law Judge found that Herf was
discharged, at least in part, for his refusal to answer
questions at the interview. In light of this finding,
it is reasonable to infer that if Herf's conduct at the
interview was only a partial motivation for the de-
cision to discharge, the underlying reason for con-
ducting the interview (i.e., Herf's absences from
work) must have played a part in the discharge de-
cision. Therefore, a make-whole remedy under
Kraft Foods is required. 4
My colleagues seem loath to explain their ration-
ale for refusing to find that discharging an employ-
ee based on conduct or information obtained at an
unlawful interview is violative of Section 8(aX1). s
Just as the threat to discharge an employee for en-
gaging in protected concerted activity and the re-
sulting discharge for engaging in such activity con-
stitute separate violations of the Act, so does an
Employer's unlawful denial of union representation
and the subsequent discharge based on conduct en-
gaged in or information obtained at the unlawful
interview.
I would adopt the Administrative Law Judge's
findings and conclusions in their entirety.
4 See my partial dissent in Krnfl Foods, 251 NLRB 59599, for a diw-
cussion of my position as to the appropriateness of a make-whole remedy
when an employee is discharged for conduct which was the subject of an
unlawful interview.
' See my concurring opinion in Kahn's and Company, Division of Con-
solidated Foods, Ca, 256 NLRB 930 (1981).
971
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT discharge any employee for
refusing to participate in an interview conduct-
ed in derogation of the employee's right to a
representative at the interview.
WE WILL NOT in any like or related manner,
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them in
Section 7 of the Act.
WE WILL offer Tom Herf immediate and
full reinstatement to his former job or, if such
job no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority
or any other rights and privileges previously
enjoyed, 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 expunge and physically remove
from our records any termination notices and
any reference thereto relating to the discharge
of Herf on March 20, 1980.
SALT RIVER VALLEY WATER USERS'
ASSOCIATION
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge: This
matter was heard before me at Phoenix, Arizona, on No-
vember 25 and 26, 1980.1 Pursuant to a charge filed
I Unless otherwise stated, all dates refer to calendar year 1980.
against Salt River Valley Water Users' Association (Re-
spondent) by Tom Herf, an individual, on March 31, the
Regional Director for Region 28 of the National Labor
Relations Board (the Board) issued a complaint against
Respondent on May 12, alleging that Respondent com-
mitted certain violations of Section 8(aXl) and (3) of the
National Labor Relations Act, as amended, 29 U.S.C.
§151, et seq. (herein called the Act). The complaint al-
leges in substance that Respondent denied the request of
Herf, one of its employees, for union representation
during an investigatory interview which Herf reasonably
believed might, and which did, result in disciplinary
action.
The parties have been afforded full opportunity to
appear, to introduce evidence, to examine and cross-ex-
amine witnesses, and to file briefs. Post-trial briefs were
filed on behalf of the General Counsel, the Charging
Party, and Respondent. Based upon the entire record,2
upon the briefs filed by counsel, and upon my observa-
tion of the demeanor of the witnesses, I make the follow-
ing:
FINDINGS OF FACT AND CONCLUSIONS
I. JURISDICTION
At all times material herein, Respondent has been an
Arizona corporation engaged in the operation and main-
tenance of a water irrigation system in the Salt River
Valley encompassing Phoenix, Arizona.3 During the 12-
month period preceding issuance of the complaint, Re-
spondent purchased and received goods, materials, and
supplies valued in excess of S50,000 directly from suppli-
ers located outside the State of Arizona.
The complaint alleges, the answer admits, and I find
that Respondent is an employer engaged in commerce
and in a business affecting commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that at all times material herein the International Broth-
erhood of Electrical Workers, Local Union No. 266,
AFL-CIO (the Union), has been a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
As discussed above, Respondent is engaged in the op-
eration of a water irrigation system. Respondent's pro-
duction and maintenance employees are represented by
the Union and are covered by an existing collective-bar-
gaining agreement.
' On January 14, 1981, counsel for the General Counsel made a motion
to correct the record. As the motion was unopposed, the corrections con-
tained therein are hereby granted, sua sponte, into the record as AU
Exh. I.
s The Salt River Project Agricultural Improvement and Power Dis-
trict (the District), a separate entity not involved in this proceeding, has
certain coextensive administration and policies with Respondent. The two
entities are collectively referred to in the record as the Salt River
Project.
972
SALT RIVER VALLEY WATER USERS' ASSOCIATION
Tom Herf, the Charging Party herein, was employed
by Respondent from January 25, 1978, to March 20,
1980, as a zanjero.4 As a zanjero, Herf was scheduled to
work 10 consecutive days, followed by 4 days off, on 8-
hour rotating shifts. Herf had been scheduled to work
the graveyard shifts from March 5 through 15. Herf did
not report to work for the graveyard shifts commencing
on March 13 and 14. Certain circumstances surrounding
these absences from work caused Herfs supervisor,
David Stanley, to become suspicious.
Prior to March 13, Stanley had denied Herf's request
for vacation leave for March 13 and 14. Herf had called
in sick on March 13 but, when Stanley called Herf's
home, no one answered. Herf did not speak with Stanley
on March 13 and did not call in on March 14.6 On the
Monday morning following these absences, March 17,
Stanley heard rumors that Herf had left town over the
weekend with his boat and camper. Stanley went to
Herfs residence and spoke to a neighbor who told him
that Herf had been out of town since the latter part of
the previous week. From Herfs residence, Stanley saw
Herf driving his camper with a boat in tow. Stanley re-
ported what he had found to his supervisors, Donald
Pipes and E. C. "Sid" Friar. On Tuesday, March 18,
Stanley and Pipes spoke with an employee who lived
near Herf's home, and who told them that Herf's camper
and boat had not been in Herfs driveway since Thurs-
day or Friday. March 13 or 14. Based on the above in-
formation, Stanley, Pipes, and Friar decided to meet
with Herf, on his return to work on March 20, in order
to obtain an explanation for what they believed to be a
violation of company policy regarding vacation and sick
leave. 7
It is undisputed that Stanley called James Green, a
zanjero and union steward, and requested that Green
represent Herf at the meeting on March 20. Thereafter,
Green, who was Herfs working partner, called Calvin
"Wayne" McDowell, another zanjero and union steward,
and asked McDowell if he would represent Herf at the
upcoming meeting. McDowell agreed to do so. Herf
heard from a fellow employee about the upcoming meet-
ing and called Green. Green told Herf of his conversa-
tions with Stanley and McDowell and suggested that
Herf contact McDowell so that the steward would be
present at the meeting.
On the morning of March 20. Stanley telephoned Herf
at his home and requested that he report to Respondent's
4 A Sparish term meaning "ditch-rider" or "water-tender." Zanjeros
perform duties essential to the transmission of water; i.e., opening and
closing the irrigation canal gates and supplying information about the
level and location of water.
s The graveyard shift is I p.m to 7 a m
6 Respondent contends that an employee must call in sick each day
before the start of his shift and mast speak directly with his supervisor
based on the following language contained in the collective-bargain:ng
agreement:
To be credited with sick leave, an employee, regardless of the shift
worked, must see that notification is given to their supervisor on or
prior to the beginning of their regular shift on each day of their ab-
sence front work because of illness. Any deviation from this rule
must be Justified to the supervisor.
The summary set forth above is for background purposes. I need not.
and do not, make any findings regarding Herf's alleged violation of com-
pany rules.
office rather than his normal work area. Herf arrived at
the office approximately one-half hour prior to his sched-
uled 3 p.m. worktime. Both McDowell and Green were
present. It is undisputed that Herf met with Stanley,
Pipes, and Frair without the assistance of a union ste-
ward. However, the facts, surrounding this meeting and
at which McDowell was present are the subject of the
instant dispute.
The General Counsel and the Charging Party contend
that Respondent violated Section 8(a)(l) of the Act by
denying Herf's request for union representation at the in-
vestigatory interview and by discharging Herf for his re-
fusal to answer questions during the interview. Respond-
ent, on the other hand, contends that Herf neither re-
quested nor was denied union representation. Respondent
further argues that, even if it committed a technical vio-
lation at the meeting without a union representative, it
cured any such violation by holding a second meeting
with Steward McDowell present. Further litigated at the
hearing was the issue of the appropriateness of a make-
whole remedy.
B. Respondent's Interviews With Herf
As discussed above, Respondent's management, Stan-
ley, Pipes, and Friar, decided to meet with Herf on
March 20 to obtain an explanation for the absences of
l'arch 13 and 14. According to Herf, upon arriving at
Respondent's offices, he spoke with McDowell and
Green. McDowell told Herf to ask for a union repre-
sentative. About 15 minutes later, Stanley approached
Herf and asked if he were ready to go into the meeting.
Herf said that he did not start work until 3 p.m. and
wanted to wait until that time. Stanley left but returned
several minutes later and summoned Herf to Pipes'
office. Herf asked Stanley whether there was a possibil-
ity of disciplinary action being taken against him. Stanley
answered, "You got it." Herf then requested the pres-
ence of his union representative and Stanley replied,
"He's not needed." According to Herf, he repeated his
request for a union representative and Stanley again re-
plied that one was not needed. Thereafter, Herf proceed-
ed into Pipes' office with Stanley following behind.
According to Stanley, it was at the time that Herf
stated his preference to wait until 3 p.m. for the meeting
that a steward was first mentioned. Stanley testified that
Herf asked, "what about a Steward?" and he replied,
"Do you need one?" Stanley was interrupted by a tele-
phone call. After the call. Stanley returned to Pipes'
office at 3 p.m., and found Herf already inside the office
with Pipes.
1 resolve this conflict in the testimony in favor of Herf
on the basis of corroboration by Green and McDowell.
Green testified that he could not hear Herfs comments
but that he twice heard Stanley say, "you don't need
one," just prior to Herfs entrance into Pipes' office.
McDowell8 testified that he heard Herf ask if he "could
a The General Counsel and the Charging Party contend that Stanley
sought to induce McDowell to leave early on that afternoon so that no
steward would be present at the time of Herfs :nterview The record
shows that Stanley advised employees, including Green and McDowell,
Continued
973
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have the union steward present" and that Stanley an-
swered, "He is not needed." Accordingly, I find that
Herf requested the presence of a union steward and that
Stanley answered that one was not needed.
Herf testified that prior to any discussion Stanley
locked the door to the office. 9 According to Herf, Frair
commenced the meeting by advising Herf that the pur-
pose of the meeting was to inquire about his justification
for the absences of March 13 and 14. Frair then ques-
tioned Herf about his whereabouts on the 2 days in ques-
tion. Frair also questioned Herf about his camper and
boat. To each question Herf responded, "no comment."
Herf testified that, after approximately 20 minutes of
such questioning, he told the supervisors that the meet-
ing was unlawful and he would make no further com-
ments. Frair asked Herf to leave the office but told him
not to leave the building. Herf then went into the room
where McDowell was working and spoke with
McDowell. Herf told McDowell what had taken place at
the meeting. McDowell advised Herf to answer the ques-
tions if the employees were questioned again.
Stanley, Pipes, and Frair all testified consistently, for
the most part, with Herfs version of the first meeting.
The significant difference is that the three supervisors all
testified that Herf gave no explanation for his refusal to
make any comment. Under the circumstances, I find it
more likely that, having had his request for the presence
of a steward denied, Herf referenced that fact during the
meeting. I therefore credit Herf's version of the first
meeting. 0o
Stanley, Pipes, and Frair all testified that, after the first
meeting with Herf, Frair called Donal Weesner, Re-
spondent's assistant general manager, Joe Tittle, Re-
spondent's manager of labor relations, and Charles Jones,
Respondent's attorney. Frair asked Tittle for advice re-
garding possible discipline of Herf. Tittle advised Friar
to bring Herf back into the office with a union steward.
Tittle also suggested that Frair review with Herf the rel-
evant portions of the contract which required justifica-
tion of the absences. Although Tittle, Weesner, and
Jones outlined possible disciplinary actions which might
be taken against Herf, the ultimate decision as to what
discipline, if any, should be granted was left to Stanley,
Pipes, and Frair. Frair, Stanley, and Pipes decided to call
Herf back to the meeting to question him again and to
terminate Herf if he still refused to justify his absences.
Prior to calling Herf back into the office, Stanley pre-
pared a termination slip for Herf.
After a recess of approximately 15 minutes, Stanley
asked Herf to come back into Pipes' office. Herf request-
ed the presence of a steward. On his own initiative,
McDowell walked into Pipes' office with Herf. '
that their paychecks were late and suggested that the employees "go
have a beer." The paychecks were, in fact, late. I do not infer from these
facts that Stanley was engaged in a devious scheme to deprive Herf of
union representation.
9 McDowell corroborated this fact.
1' In crediting Herfs testimony regarding this point, I have considered
that his testimony is contradicted by three witnesses. However, credibil-
ity determinations are not based on numbers, but rather upon the demea-
nor of witnesses, with due regard for the logic of probability.
" Stanley testified that he responded affirmatively to Herrs request to
have McDowell present.
According to Herf and McDowell, Stanley initiated
the meeting by handing Herf two copies of his termina-
tion notice and by telling Herf that the reason for his dis-
charge was written on the termination slip. 2 Herf
handed one copy of the termination notice to McDowell.
McDowell then asked Respondent's representatives what
was going on. McDowell mentioned a recent incident in-
volving another employee who had received only a 1-
day suspension for an allegedly similar offense. Friar an-
swered that the other employee's case had no bearing on
Herf's case. Friar then began to ask Herf the same ques-
tions he had asked in the first meeting with Herf. Herf
did not answer the questions but rather asked Stanley
whether he had, in fact, been terminated. When Stanley
replied affirmatively, Herf stated that, if he were already
terminated, that was no reason for him to comment.
Friar then read the contract provisions upon which Re-
spondent was relying. McDowell and Pipes argued brief-
ly over the past practice regarding requests for leave.
Friar asked if McDowell had any questions and
McDowell answered that he did not. The meeting was
then ended with Herf making a derogatory remark to-
wards Stanley.
The significant conflict in the testimony regards not
the subject matter of the meeting but, rather, the order in
which the events occurred. According to Pipes, Friar,
and Stanley, at the outset of the meeting, Friar instructed
Stanley to bring McDowell up to date with regard to the
first meeting. Stanley repeated for McDowell the reasons
why Herf's absences were suspicious and told McDowell
that Herf had refused to answer any questions at the first
meeting. Friar then proceeded to ask Herf the same
series of questions that he had asked at the first meeting.
Herf simply answered, "No comment." Friar then read
the contract provisions which he claimed required Herf
to justify his absences. There was no response from Herf
and Stanley then stated that Herf had left Respondent
with no alternative but to terminate his employment.
Stanley picked up the termination slip, signed it, and
passed it over to Pipes for his initials.
I have decided to credit the testimony of McDowell
regarding this meeting. McDowell has less of a personal
interest in this case than the other witnesses. Further, if
at the outset of the meeting Stanley had told McDowell
of Herf's refusal to answer questions at the first meeting,
it would be unlikely for McDowell to remain silent, par-
ticularly where he had previously told Herf to answer
the questions if they were asked again. Moreover, I was
not convinced by Respondent's explanation for having
filled out the termination slip prior to the meeting. I
credit Herfs version of these events as his testimony is
substantially corroborated by McDowell.'3
1a Stanley had written on the termination slip "A.W.O.L failure to
justify your absences for March 14 & 15 1980." The March 14 and 15
dates refer to the dates the shifts ended.
"3 I have considered Respondent's argument that the three supervisors
were advised to give Herf another chance to answer the questions with a
steward present. However, I am constrained to find that Stanley handed
Herf the termination slip prior to the questioning of Herf If Herf had
followed McDowell's advice and the supervisors had followed Tittle's
advice, this case would not have arisen.
974
SALT RIVER VALLEY WATER USERS' ASSOCIATION
C. Analysis and Conclusions
1. The interview and discharge
In N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251 (1975),
the United States Supreme Court upheld the Board's de-
termination that under Section 7 of the Act an employee
has the right to insist upon the presence of a union repre-
sentative at an interview which the employee reasonably
believes might result in disciplinary action.
As found above, Stanley had requested that Herf
report to Respondent's office rather than his work sta-
tion. Herf had earlier learned from his steward that Re-
spondent wanted to discuss Herfs absences of March 13
and 14. Thus, there can be no doubt that Herf had rea-
sonable cause to believe that disciplinary action was
being considered. Under these circumstances, Respond-
ent violated Herrs rights under Weingarten by interview-
ing Herf after Stanley had denied the employee's request
for a union representative.
Respondent argues that, even if it engaged in a techni-
cal violation of Weingarten at the first meeting, it
"cured" the violation by holding a second meeting at
which McDowell was present. However, I find no factu-
al basis for such an argument. As found above, at the
outset of the second meeting, prior to any questioning of
Herf, Stanley handed the employee his termination slip.
This termination slip indicated as the reason for dis-
charge: "A.W.O.L. failure to justify your absences." The
"failure to justify [his] absence" could only refer to the
first meeting held that date as that was the only occasion
when Herf was asked to justify or explain his absences.
Accordingly, I find that Respondent violated Section
8(a)(1) of the Act by conducting an interview with Herf
after having denied his request for union representation
and further violated Section 8(a)(l) by discharging Herf
for his failure to answer questions at said interview.
2. The make-whole remedy
In Kraft Foods Inc., 251 NLRB 598 (1980), the Board
announced the following test for determining whether a
make-whole remedy 14 is warranted in cases involving
violation of an employee's rights under Weingarten. First,
the General Counsel can establish a prima facie case by
proving that an employer conducted an investigatory in-
terview in violation of Weingarten and that the employee
make-whole rights were violated was subsequently disci-
plined for the conduct which was the subject of the un-
lawful interview. Here, as shown above, the General
Counsel has established that Respondent conducted an
unlawful interview with Herf and subsequently dis-
charged Herf, at least in part, for his refusal to answer
questions at that unlawful interview.
In the face of such a showing, the burden shifts to Re-
spondent to prove that its decision to discipline Herf was
not based on information obtained at the unlawful inter-
view. When questioned as to the reason for Herfs dis-
charge, Stanley adopted his prior testimony at an unem-
ployment compensation hearing that Herf was not termi-
nated for his absences but "was fired for the simple
14 Such as reinstatement, backpay, and expungement of all disciplinary
records.
reason that he refused to answer questions and justify the
absences at a meeting that was held on March 20th."
Consistent therewith is the testimony of all three supervi-
sors, Stanley, Pipes, and Friar, that they had no intention
of discharging Herf prior to the meeting of March 20.
However, 15 minutes after the unlawful meeting, Herf
was terminated for the failure to justify his absences.
Under such circumstances, Respondent has failed to sub-
stain its burden of proving that Herfs discharge was not
based on information obtained at the unlawful interview.
Accordingly, I find that Herf is entitled to a make-whole
remedy.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
and in a business affecting commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has engaged in unfair labor practices in
violation of Section 8(a)(1) of the Act by denying the re-
quest of employee Tom Herf to have union representa-
tion at an investigatory interview which he reasonably
believed might result in disciplinary action against him,
and by discharging Herf based upon his refusal to answer
questions at said unlawful interview.
4. The unfair labor practices found above are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the purposes of the Act.
Having found that Respondent discharged its employ-
ee Tom Herf in violation of Section 8(a)(l) of the Act, I
shall order Respondent to offer Herf 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 seniority or
other rights and privileges,' 5 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. Woolworth Company, 90 NLRB 289 (1950), Florida
Steel Corporation, 231 NLRB 651 (1977), and Olympic
Medical Corporation, 250 NLRB 146 (1980). See also Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
Further, having found that Respondent discharged
Herf based on an unlawful interview, I shall recommend
that Respondent be ordered to expunge or physically
remove from its records any termination notices and any
reference thereto relating to the discharge of Herf on
March 20, 1980.
l Nevertheless, if Herf does accept reinstatement, Respondent is not
foreclosed from lawfully requiring justification from Herf for the ab-
sences of March 13 and 14. See Illinois Bell Telephone Company, 251
NLRB 932 (1980).
975
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER'
The Respondent, Salt River Valley Water Users' As-
sociation, Phoenix, Arizona, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Denying the request of union representation to em-
ployees at investigatory interviews when the employees
have reasonable grounds to believe that the matters to be
discussed might result in their being the subject of disci-
plinary action.
(b) Discharging any employee on the basis of informa-
tion obtained at an investigatory interview where it has
denied the employee's request to have union representa-
tion at said interview.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the purposes of the Act:
(a) Offer Tom Herf immediate and full reinstatement
to his former job or, if such job no longer exists, to a
substantially equivalent position, without prejudice to his
i6 All outstanding motions inconsistent with this recommended Order
hereby are denied. In the event no exceptions are filed as provided by
Sec. 102.46 of the Rules and Regulations of the National Labor Relations
Board, the findings, conclusions, and recommended Order herein shall, as
provided in Sec. 102.48 of the Rules and Regulations, be adopted by the
Board and become its findings, conclusions, and Order, and all objections
thereto shall be deemed waived for all purposes.
seniority or any other rights and privileges previously
enjoyed.
(b) Make whole Herf for any loss of earnings he may
have suffered by reason of Respondent's discrimination
against him, in the manner set forth in the section of this
Decision entitled "The Remedy."
(c) Expunge and physically remove from its records
any termination notices and any reference thereto relat-
ing to the discharge of Herf on March 20, 1980.
(d) Preserve and, upon request, make available to
agents of the Board, for examining and copying, the pay-
roll records, social security records, timecards, personnel
records, and all other records necessary to analyze the
amount of money due under the terms of this Order.
(e) Post at its Phoenix, Arizona, facility copies of the
attached notice marked "Appendix."' 7 Copies of said
notice, on forms provided by the Regional Director for
Region 28, after being duly signed by Respondent's au-
thorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 28, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
17 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
976