Southern Bell TelephoneDownload PDFNational Labor Relations Board - Board DecisionsAug 27, 1980251 N.L.R.B. 1194 (N.L.R.B. 1980) Copy Citation 1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Southern Bell Telephone and Telegraph and Lafaye K. Shoemaker. Case 10-CA-13302 August 27, 1980 DECISION AND ORDER On August 16, 1978, Administrative Law Judge George Norman issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings,' findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. 2 Contrary to the Respondent, we find the Admin- istrative Law Judge's remedy appropriate. The Re- spondent conducted an unlawful interview, im- posed discipline for conduct which was the subject of that interview, and thus, through its own wrongdoing, put into issue the extent to which the interview affected its decision to impose discipline. Restoration of the status quo ante is, therefore, prima facie, appropriate and the burden is on the Respondent to establish that its decision to disci- pline Shoemaker was not based on information ob- tained during the unlawful interview.3 The Respondent contends it has met that burden and therefore backpay and expunging the record of Shoemaker's suspension are inappropriate remedies. Our dissenting colleague agrees with this, apparent- ly relying on the facts that (1) lawfully gathered in- formation was available to the Respondent, and (2) Garrett, Shoemaker's superior, gave uncontrovert- ed testimony that the Respondent did not rely on the interview. However, the Administrative Law Judge found that Shoemaker's suspension was a "result" of the interview and thus rejected Gar- rett's testimony that t was not. Furthermore, our colleague is mistaken if he believes that we are bound to accept testimony on the question of ulti- mate fact simply because it is not controverted. ' The 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. 2 In adopting the Admiri;.rt,tive Law Judge's Decision, we disavow his statements that denial of an e:ployee's right to representation under NVL.R.B. v J. Weingarten. Inc., 420 U S 251 (1975), without the subse- quent imposition of discipline, is a denial ol rights without real substance It is the employee's right to engage in protected concerted activity through the presence of a representative that Weingarten addresses, not the subsequent action of an employer. a Member Jenkins would find the violation if the discipline is imposed for conduct which is the subject of the unlawful interview. regardless of any proof that it was not based on information garnered during the inter- view 251 NLRB No. 159 Shattuck Denn Mining Corporation (Iron King Branch) v. N.L.R.B., 362 F.2d 466 (9th Cir. 1966). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Southern Bell Telephone and Telegraph, Atlanta, Georgia, its of- ficers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. MEMBER TRUESDALE, concurring in part and dis- senting in part: I agree with my colleagues' decision in all re- spects except that pertaining to the remedy. I would not order backpay for Shoemaker, nor would I expunge the records of her suspension, for it seems clear to me that the Respondent's conten- tion that, in suspending Shoemaker, it relied on in- formation gathered independently of, and before, the unlawful interview is supported by the record. Accordingly, the majority's remedy in this respect is improper under Section 10(c) of the Act which precludes reinstatement and backpay for individ- uals suspended or discharged for cause. Cf. Illinois Bell Telephone Company, 251 NLRB 498 (1980), in which I participated in an order directing the re- spondent there to reinstate an employee with back- pay and to delete all references to disciplinary action based on an unlawful interview where the decision to discharge was based on information ob- tained during that interview.4 I do, of course, concur in all other respects with the cease-and- desist and affirmative portions of the order pro- vided by the majority. 4 Since my colleagues appear uncertain as to the facts upon which I rely, I merely refer them to the factual findings of the Administrative Law Judge which I joined them in adopting. I am not persuaded, as they are, by his final conclusion that the suspension was the "result" of the unlawful interview, because his factual findings do not establish the nec- essary causal link between the interview and the suspension. DECISION STATEMENT OF THE CASE GEORGE NORMAN, Administrative Law Judge: This case was heard at Atlanta, Georgia, on April 19, 1978. The charge was filed on December 8, 1977, by Lafaye K. Shoemaker, an employee of Southern Bell Telephone and Telegraph, herein called Respondent or the Compa- ny. Based on that charge, Region 10 of the National Labor Relations Board, by its Regional Director, issued a complaint dated January 11, 1978, alleging that Re- spondent violated Section 8(a)(l) of the National Labor Relations Act, as amended, herein called the Act, by denying employee Shoemaker's request to have a union SOUTHERN BELL TELEPHONE 1195 representative present at an investigatory meeting for the purpose of imposing disciplinary action that Respondent directed employee Shoemaker to attend. Issues The primary issues are: 1. Whether employee Shoemaker requested the pres- ence of a union representative during an investigatory meeting conducted on November 17, 1977. 2. Whether employee Shoemaker was entitled to union representation during the investigatory meeting conduct- ed on November 17, 1977. 3. Whether the subsequent suspension of employee Shoemaker should be expunged from her record if union representation was wrongfully denied. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine the witnesses, to argue orally, and to file briefs. A brief was filed on behalf of Respondent. No brief was filed by the General Counsel.' All have been carefully considered. Upon the entire record in the case and from my obser- vation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The Company, a New York corporation, with an office and place of business located at Atlanta, Georgia, is engaged in the business of providing local and long- distance telephone services. During the past calendar year, it has received gross revenues in excess of $250,000, and during the same period has purchased and received goods valued in excess of $50,000 directly from suppliers located outside the State of Georgia. The Com- pany is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. It. THE LABOR ORGANIZATION INVOLVED Communications Workers of America, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE ALLEGED UNFAIR LABOR PRACTICES At the time of the alleged violation, employee Shoe- maker was employed by Respondent and held the title of service evaluator. The service evaluator's duties involve monitoring certain equipment and completing records which reflect the degree of efficiency with which the Company's communication system is operating. The equipment monitored by the service evaluator dispenses a tape showing telephone numbers dialed and the se- quence in which they were dialed. For each number the service evaluator completes a ticket by inserting certain information such as the time dialed and the time com- pleted. These times are not on the tape. A quota of calls Although counsel for the General Counsel argued orally at the hear- ing, the nature of the remedy sought was not discussed nor does the com- plaint contain a prayer for relief indicating the nature of the remed sought by the General Counsel in this case from each exchange is set for each service evaluator. The tickets completed by the service evaluator are re- viewed by management and the Federal Communications Commission and are used to evaluate the quality of serv- ice being provided to the telephone subscriber by the Company. As a result of numerous discrepancies between tapes and tickets completed by certain service evaluators, an investigation was initiated in August 1977. Tapes pro- duced by the equipment were compared with corre- sponding tickets completed by the service evaluators. It became apparent that times written on tickets by em- ployee Shoemaker did not correspond with the sequence of numbers on the tapes and reflected inaccurate infor- mation. It is undisputed that inaccurate information indeed was placed on the tickets by employee Shoemak- er. After it had become apparent that employee Shoemak- er was involved in numerous cases of placing inaccurate information on tickers, Timmie Garrett, the service eval- uation manager and Shoemaker's second-level supervisor, on November 17, 1977, went from the third floor to the second floor where Shoemaker was working and asked Shoemaker to go with her up to the third floor where they proceeded to Chris Whitworth's office. Whitworth at the time was Garrett's boss. Upon arriving, Garrett in- troduced Shoemaker to Johnny Strickland, Southern Bell's security representative who was already there waiting. This was the first time that Shoemaker was aware that an investigation was taking place. 2 Garrett and Strickland being aware of company policy concern- ing such investigative meetings, prior to the meeting, Garrett called Network Supervisor Jerry Roberts to see if he had a union representative who would be available during the time of the meeting. She did this because of the lack of union representatives in her own crews at that time. In this regard, Garrett testified that she wanted to be prepared in case the Charging Party asked for a union representative. Roberts assured Garrett that he did have a union representative under his jurisdiction who would be available at the time of the meeting. Shoemaker testified that when Strickland said he wanted to talk to her about some discrepancies, she told him she would like to have "my representative here." She said Strickland did not reply. He offered her a chair and she sat down. Strickland had a piece of paper at the desk on which he wrote as he asked her her name, ad- dress, phone number, social security number, and senior- ity date, and then he showed her some tickets which re- flected discrepancies in her work and asked her if she could explain them. She asked him what he was writing down, and Strickland said it was for his personnel re- cords. When he finished writing, he asked her to read it and sign it. Shoemaker told Strickland that she would not sign it unless "I had a union representative there or legal advice." Strickland replied, "Legal advice?" twice, and then said to Shoemaker, "You only have two 2 Respondent has a written policy stating that "Whenever an investiga- tory interview is to be conducted from which discipline could reasonably result and an employee requests the presence of a union representative, this request should he granted." SOUTHERN BELL TELEPHONE 1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD choices, either you sign it or verbally agree that what this statement says is true." Shoemaker replied, "My name, address, telephone number, that is true . . . I am not signing anything else." And she did not. Garrett then took Shoemaker back to the second floor where she went back to work. Shoemaker further testified that, when she was asked to go upstairs to the third floor by Garrett, she had no idea what the purpose of going to Whitworth's office was. She had not met Strickland prior to that time, nor did she know that he was from the security department until that meeting. Shoemaker said that at the meeting she did not have a feeling that she had done anything wrong, but she was scared to death at the mention of se- curity, and that she knew what security was at the tele- phone company, but had never had any dealings with se- curity. She said that she was never told at the meeting that she had done anything wrong, but Strickland did say that the tickets were out of timing sequence and that the timing was not correctly indicated on the tickets. Shoemaker did not deny that the tickets contained dis- crepancies. Strickland and Garrett testified that Shoemaker did not request or even mention union representation or rep- resentation of any kind prior to or during the meeting. After taking Shoemaker back down to the second floor, Garrett took another service evaluator upstairs with her. She later brought that service evaluator back down and told her to go home. Garrett then told Shoe- maker, about 8 p.m., "I want you to go home and I'll get back in touch with you about what we decide to do about the disciplinary action." On November 29, Shoemaker was again summoned upstairs to Whitworth's office. Garrett, who was sitting behind the desk, told Shoemaker that she had talked with the security department and the "higher-ups" and they had requested that Shoemaker be terminated but she (Garrett) was not going to do that; she was going to sus- pend her for 10 working days.3 Shoemaker later filed a grievance concerning her suspension. Terry Nicholson, the union steward who with David Prather were Shoe- maker's grievance representatives, testified that at the grievance session Garrett was asked if Shoemaker re- quested representation at the November 17 meeting and that her response was that after the meeting started and Shoemaker realized what was going on, she did ask for representation.4 Garrett denied that she made any such statement at the grievance meeting. Discussion and Conclusions Respondent argues that the General Counsel did not prove that the Charging Party requested union represen- tation in the investigatory meeting occurring on Novem- ber 17, 1977. Respondent argues further that the weight of the evidence presented in the hearing proves that the 3 After the meeting of November 17, no more discrepancies were found in Shoemaker's tickets. 4 Nicholson said he did not remember whether Garrett said she made a response to Shoemaker's request for representation. Present at the griev- ance meeting were David Prather and Terry Nicholson for the grievant and Betty Ramble and Timmie Garrett for management. Charging Party never requested representation of any kind in this meeting. In that connection, the General Counsel produced two witnesses to prove that Shoemaker did request represen- tation at the November 17 meeting; namely, Shoemaker and Nicholson. Respondent offered the testimony of Garrett and Strickland to prove that Shoemaker did not request representation. Shoemaker was unaware of an investigation concern- ing her job performance prior to being asked by Garrett to go upstairs to the meeting and she had no idea at that time what the meeting was about. When she arrived at the meeting place, she was introduced to Strickland and told that he was a security officer of the Company. Strickland then confronted her with tickets which she admitted she had prepared and which she did not deny contained discrepancies. She testified that she was scared because security was involved. When Strickland asked her to sign a statement (it is undisputed that she refused to sign), she requested representation or legal advice. In such circumstances of surprise and fear it is reasonable to conclude that a refusal to sign a statement would normal- ly be accompanied by a remark such as "I want legal advice," or "I want a representative." That, in substance, is what Shoemaker testified was her stated reaction. That, coupled with the testimony of Nicholson that, at the grievance meeting involving the discipline of Shoe- maker for the discrepancies on her tickets, Garrett said that Shoemaker had asked for representation as the meet- ing got underway, convinces me that Shoemaker had indeed asked for representation at the November 17 meeting. Moreover, Shoemaker's demeanor while testify- ing, as compared with that of Garrett and Strickland, tips the credibility scales in her favor. She was candid, forthright, and not in the least evasive or hesitant. Gar- rett and Strickland did not so impress me. Respondent also argues that Shoemaker's testimony demonstrated that, during the meeting in question, she did not reasonably believe that the meeting would result in disciplinary action and that under N.L.R.B. v. J. Wein- garten. Inc., 420 U.S. 251 (1975), not only must the em- ployee request representation in order to enjoy the right to union representation, but the right to union represen- tation attaches only at meetings which "the employee reasonably believes may result in disciplinary action against him." Although Respondent states the law cor- rectly, I do not agree with his statement of the facts. Inasmuch as Shoemaker was not apprised of the fact that she was being investigated nor was she told what the November 17 meeting was about until she actually arrived, she had no forewarning and, therefore, did not and indeed, could not have been expected to request rep- resentation prior to attending the meeting. Consequently, until after the meeting began she could not possibly have anticipated either that the meeting would result in disci- plinary action against her. Upon being confronted by the security officer with tickets containing discrepancies in her work and being asked to read a statement containing an admission by her, Shoemaker, being surprised and scared, asked for representation. Thus, I am convinced that not only did she request representation at the meet- SOUTHERN BELL TELEPHONE 1197 ing, but also that she did so because she reasonably be- lieved that the meeting "may result in disciplinary action" against her. Thus, both conditions set forth in N.L.R.B. v. J. Weingarten, Inc., supra, have been met. Respondent cites article 17.05 of the working agree- ment between the Communications Workers of America, AFL-CIO, and Respondent as not applying to the No- vember 17 meeting in that no discipline was to be announced.Respondent also stated that it has a policy of providing union representation at investigatory meetings where discipline could reasonably follow. Both Garrett and Strickland were aware of that policy. Indeed, Gar- rett testified that she went to the trouble of arranging for a union representative to be available should one be re- quested. That persuades me that Respondent considered the meeting not just merely an investigatory meeting, but a meeting that an employee (Shoemaker) could reason- ably believe "may result in disciplinary action" against her, as was the case in Weingarten. Respondent argues further that even if the testimony of Shoemaker, "I would not sign it [the statement] unless I had a union representative there or legal advice," were believed there was no wrongful denial of union represen- tation, inasmuch as she did not sign the statement and she admitted that she was told she did not have to sign it; that her request for union representation was condi- tioned upon having to sign a statement and, thus, the condition she attached to her alleged request never oc- curred; that she allegedly asked for union representation only for the purpose of signing the statement and not for the meeting in general; and that since she was told she did not have to sign a statement there was no wrongful denial of union representation. That argument ignores the fact that the statement she was asked to sign not only concerned the subject matter of the meeting but was, indeed, a summary of what had taken place at the meet- ing. It contained her "admission of wrongdoing" that was the very basis for assessing the discipline which in fact followed. Respondent also questions the Charging Party's mo- tives in her claim that she asked for union representation in that she did not come to the National Labor Relations Board for 3 weeks after the meeting; that she waited until she was disciplined before coming forth with her complaint; and that the Charging Party has much to gain by now alleging a denial of union representation; i.e., the hope that her 2 weeks' suspension will be removed from her record. Respondent appears to lose sight of the fact that, in life, redresses are sought only after wrongs have been committed, not before. Why would she have gone to the National Labor Relations Board and charged that she was denied representation at a meeting which she reasonably expected might result in disciplinary action, unless discipline actually resulted therefrom. The wrong of denying her representation without the resulting pun- ishment is a denial of rights without real substance. Cer- tainly it was the 2-week suspension that followed the denial of her right to representation that motivated her to file a charge and seek redress. Such a motive should not in such circumstances be considered suspect. Respondent also argues that Garrett and Strickland knew the company policy concerning the providing of union representation and even took steps to insure that a union representative would be available in the event that the Charging Party requested one, and that they had no reason to violate this policy. Respondent comes full circle in its argument that Garrett and Strickland could have denied her representation for the reason previously cited by Respondent that Shoemaker conditioned her re- quest for representation on the signing of a statement that Respondent told her she did not have to sign. Ergo, being of the opinion that the denial of the request would not in those circumstances be a violation of Respondent's policy, they did just that. Therefore, I do not agree with Respondent that the only reasonable conclusion which can be reached on the testimony of Garrett and Strick- land concerning the arrangements for the availability of the union representatives is that the Charging Party did not request union representation. I believe the Charging Party requested union representation and that her request was denied, and thus, her rights were violated. N.L.R.B. v. J. Weingarten, Inc.. supra; International Ladies' Gar- ment Workers' Union, Upper South Department, AFL-CIO v. Quality Manufacturing Co., 420 U.S. 276 (1975). IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's oper- ations described in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in, and is engaging in, certain unfair labor practices, I shall recom- mend that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent unlawfully required that employee Lafaye K. Shoemaker participate in an in- vestigatory meeting for the purpose of imposing disci- plinary action, while denying the request of said employ- ee for a union representative, and as a result of such meeting issued a 2-week disciplinary layoff to her, I shall recommend that Respondent be ordered to revoke and expunge from its records the disciplinary layoff given to said employee and to make her whole for any loss of pay suffered by her as a result of her 2-week disciplinary layoff, with interest thereon, to be computed in the manner prescribed in F W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). 5 On the basis of the foregoing findings of fact and con- clusions, and upon the entire record in this case, I hereby make the following: s See, generally, Isis Plumbing Heating Co.. 138 NLRB 716 (1962) SOTHERN BELL TELEPHONE 197 1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing an em- ployee in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in, and is engag- ing in, unfair labor practices proscribed by Section 8(a)(l) of the Act. 4. By requiring that an employee participate in an in- vestigatory interview for the purpose of imposing disci- plinary action without union representation, where such union representation had been requested because the em- ployee had reasonable grounds to believe that the mat- ters to be discussed may result in her being disciplined, and discipline was actually imposed, Respondent has vio- lated Section 8(a)(l) of the Act. 5. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following recommended: ORDER 6 The Respondent, Southern Bell Telephone and Tele- graph, Atlanta, Georgia, its officers, agents, successors, and assigns, shall: i. Cease and desist from: (a) Issuing disciplinary layoffs and requiring that em- ployees participate in employee investigatory meetings without union representation, although requested by em- ployees who have reasonable grounds to believe that the matters to be discussed may result in their being the sub- ject of disciplinary action, and actually imposing such disciplinary action on the employee. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Strike and physically remove from its records and files any reference to the layoff that was imposed against Lafaye K. Shoemaker on November 29, 1977, and make her whole for any loss of pay she may have suffered as a result of her 2-week disciplinary suspension beginning on November 29, 1977, with interest thereon, in the manner set forth in the section of this Decision entitled "The Remedy." a 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 find- ings, 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. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Order. (c)Post at Respondent's place of business in Atlanta, Georgia, copies of the attached notice marked "Appen- dix." 7 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 7 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILtL NOT issue any disciplinary layoffs or suspensions or require any employee to take part in any investigatory interview or meeting in which the employee has reasonable grounds to believe that the matters to be discussed may result in his or her being the subject of disciplinary action and concern- ing which we have refused that employee's request to be represented by a labor organization. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce employees in the exercise of their rights under Section 7 of the Na- tional Labor Relations Act, as amended. WE WILL revoke and expunge from our files and records all papers and other references to the'No- vember 29 disciplinary suspension given to employ- ee Lafaye K. Shoemaker, and WE Wl. make Lafaye K. Shoemaker whole for any loss of pay she may have suffered as a result of her 2-week disci- plinary suspension beginning on November 29, 1977, with interest thereon. SOUTHERN BELL TELEPHONE AND TELE- GRAM Copy with citationCopy as parenthetical citation