Texaco, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 633 (N.L.R.B. 1980)

TEFXAC () IN('. t'; . Texaco, Inc. and Oil, Chemical and Atomic Workers Local 1-591, Oil, Chemical and Atomic Work- ers International Union, AFL-CIO. Case 19- CA-9950 August 27, 1980 DECISION AND ORDER On August 14, 1978, Administrative Law Judge George Christensen issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed a brief in support of the Administra- tive Law Judge's Decision. 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,2 and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge found that Re- spondent, by ordering the union representatives of employees Richard Deutsch and Travis Slater to remain silent at their disciplinary conferences with Respondent, violated Section 8(a)(l) of the Act. The Administrative Law Judge concluded that Section 7 of the Act not only assures the employee the right, upon request, to union representation at an interview which he reasonable expects may result in discipline, but also assures the employee that the representative present at such an interview will have the opportunity to provide effective as- sistance to the employee. For this conclusion, the Administrative Law Judge cited the Supreme Court's decision in International Ladies' Garment Workers' Union, Upper South Department. AFL- CIO v. Quality Manufacturing Co., et al., 420 U.S. 276 (1975), and the Board's decision in Certified Grocers of California, Ltd., 227 NLRB 1211 (1977).3 Respondent excepts to the Administrative Law Judge's finding that it violated Section 8(a)(1) of the Act, contending, inter alia, that the Supreme Court's decision in N.L.R.B. v. J. Weingarten, Inc.,4 does not support the Administrative Law Judge's conclusion that Section 7 extends the right of representation to an employee's participation in i Responden filed a motion to supplement its brief by adding a refer ence to the Board's decision in .4,nmoo Oil Company. 231 NLRH 551 (1978) That motion was denied by the oard's Executive Secretary Respondent has excepted to certain credibility findings made bh the Administrative Law Judge. It i 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 resolution, are incorrect Standard Dr'y aoll Producr. Inc.. 91 NLRB 544 (1950). nfd. 188 F 2d 362 (3d Cir 1951) e have carefully examined the record and find no basis for reversing his findings :' The Administrative Lass Judge also cited the Board's decision in Climax Molybdenum (mpan. a Division i Al max. I , 227 NI R I 8s (1977). and Mobhil Oil (orporatiion 196 NlRIl 11)52 (19721 4 42) I S 251 (975} 251 NLRB No. 63 a purely disciplinary interview: i.e., one in which discipline has already been determined. We find merit in this exception with respect to the inter- view conducted with employee Slater. However, for the reasons set forth below, we affirm the Ad- ministrative Law Judge's finding that Respondent violated Section 8(a)(I) by its conduct of the inter- view with Deutsch. The Deutsch Incident In late September 1977, Richard Deutsch, a pipe- fitter, was assigned to install piping inll a cooling tower at Respondent's facility in Anacortes, Wash- ington. Working on the tower at the same time was another employee, Ron Robinson. While Deutsch was still w\orking, Robinson moved dows n to the tower floor and removed his locking device cover- ing the tower's electrical fan switch.' Soon after Robinson's departure from the tower, Jim Iracey. a boilermaker's helper. asked Deutsch's supervisor, Ed Linnell. whether he could turn on the tower's fan to see if it was working properly. Linnell re- plied that he could if there was no locking device on the fan switch. On approaching the tower. Tracey observed that Deutsch was working on the tower, although there was no locking device on the electrical switch. Tracey brought this matter to the attention of Gene Vaughn, an assistant fore- man. Vaughn in turn notified Linnell that Deutsch had been found working on the tower without having attached his locking device to the tower's fan switch. Prompted by Vaughn's report, Linnell personally investigated the matter, and interviewed Tracey and Robinson regarding their accounts of the incident. According to Linnell, Robinson stated that on leaving the tower he told Deutsch to place his locking device on the tower switch.' Apparent- ly satisfied with the results of his investigation, Linnell then summoned Deutsch to his office for the purpose of orally reprimanding Deutsch for failing to attach his locking device to the tower switch as required by company operating instruc- tions. 7 After receiving Linnell's directive to come to his office. Deutsch, apparently aware of Linnell's in- vestigation and anticipating the possibility of disci- pline, requested the assistance of the acting union steward, John Guidinger. Linnell, after securing ,' Eit b craftsmarn larried a locking de ic folr iisc Ill pre enltin l e eratlion of equipment while ork as being perfrirled lthrc lon i; Ihe Adililsr;tii se as Judge, inoling that icilllclr i I r.ic, r 1 R ill.fl testified. credilted I ill ell's testilni ii oil Iti lite \icllt 1 Ilil Cli- eri ll tii loccl rred hb cIleen R hbiiionill i id 11111 IIII I llCI I i 1ii tilt' I)eulth illcidenit He did lnot redil linlinell dhl Rthl hil i 1 ii lti til I)eltscil h c ,s lea inlg til IlYer Rtespoidlld cnl's si;idlllng ilsirlllliol .1 ret(lircT I I rh.i1 1iit ) i pll l ' Ii. 1ll IlL.king dl'\ l {l AI lr !e r ll g Ci.n nlran q llbmen ,ll; Lfll l Jl l i \ lc ll nlg TFXACO. INC. b3 3 034 I)ltCISIO(NS ()OF NATI()NAL .ABO()R REL.ATIONS ()ARI) the approval of the employee relations department, agreed to allow Guidinger to attend the meeting, but stated that his role was limited to that of a silent observer. Should Guidinger attempt to speak at the meeting, Linnell warned that he would be asked to leave. According to Guidinger's credited testimony, Linnell began the meeting by reading Respondent's standing instruction to Deutsch. Lin- nell then criticized Deutsch for not locking out, se- cured an admission that he had not locked out, and emphasized the seriousness of his misconduct. 8 The Slater Incident On October 26, 176, Travis Slater was assigned by Assistant Foreman Gaylord Greenough to grease the valves in the catalytic reforming unit and the hydrotreater unit. Greenough, who had gone to the operator's shack at approximately 2:40 that afternoon to pick up another employee, no- ticed that Slater was inside the shack with a coffee cup in his hand. Returning approximately 20-30 minutes later,9 Greenough again saw Slater in the shack, this time with his helper. Greenough asked Slater whether he had completed his assignment. Slater replied in the negative, adding that there was plenty of work yet to be done. Greenough called Slater out of the shack and asked him why he and his helper were not working on the greas- ing assignment. Slater replied that they had been lugging a heavy grease gun up and down the tower ladder and had decided to rest for a minute at the shack. Greenough directed them to return to work, stating that the operator's shack was not a place for lounging and sitting around drinking coffee. Slater and his helper thereupon returned to work and Greenough reported the matter to his superior, Foreman Charles Fair. Based on Greenough's report and satisfied that a 3-day suspension was warranted under the circumstances, to Fair pre- pared a 3-page letter to Slater in which he recited a number of earlier incidents of misconduct and closed with a statement that Slater was suspended for 3 days and with a warning that more severe discipline, including discharge, would follow if there were any further incidents of misconduct. On October 28, 1977, Fair summoned Slater to his office for the purpose of imposing the 3-day suspension. When Slater arrived at Fair's office, Slater asked if the meeting involved discipline. Fair " (uidinger's ccount of the meeting is essentially corroborated by )Deutsch According ir )eutslch. t.innell "went through it all .ex- plitned what happened asked me what happened [and] told rme his side and my side" ' (reeniough testified that he returnled 20 minutes later, whereas Slater placed the time loser t 30() minutes. "' Siatler had been the subject of several earlier complaints ad sarn- ings coincerning his Aolrk conduct replied that it did. Slater then asked for union rep- resentation and specifically requested Frank Mann of the Union's Workmen's Committee to represent him. Fair granted the request, but stated that Mann would not be allowed to participate actively in the meeting-a condition repeated to Mann when he arrived. Fair began the meeting by handing Slater the suspension letter and stating that he was sus- pended for 3 days. Slater read the letter and com- mented that he had been drinking water, not coffee, as reported in the letter. Fair started to ask Greenough whether there was water rather than coffee in the cup, but stopped, saying that it had no bearing on the issue. Slater also said that he had rested in the shack only a few minutes. Fair, how- ever, reiterated the 3-day suspension and told Slater to take it up with the Union if he so de- sired. As noted, the Administrative Law Judge found that Respondent violated Section (a)(l) of the Act by refusing to allow Union Representatives Gui- dinger and Mann to lend effective assistance to em- ployees Deutsch and Slater at their disciplinary meetings. Although characterizing those meetings as having the "elements of both an investigation and assessing of discipline," the Administrative Law Judge nevertheless concluded that the alleged purpose of the meetings was irrelevant to the con- sideration of whether a violation had in fact oc- curred. In his view, it is sufficient to support a vio- lation of Section 8(a)(1) of the Act that Respondent denied effective representation to employees Deutsch and Slater at a time when they entertained a reasonable belief that the interviews would result in disciplinary action. In response to the allegations in the complaint, t 2 and excepting to the Administrative Law Judge's I he matter of union represcntat ill at disciphlinar nieetings as dis- cussed in a subsequenlt cetilg betvueen conmpanl represlentaiises and the Union's Workmen's Committee At that sessil. Respondent reaffirmed its position taken previously at the disciplinar cnferences with I)eutscl and Slater that union representatives culd attend disciplinary discus- sions, hut would not he permitted ttl leld actli e assistancc tIheir clilet- employee. The Union replied that it was not only entitled to ;ellend ,slh conferences, but could actively participate on behalf of the employee Resnondent replied that it was not willing to change its policy) tZ In its brief, Respondent, noting that the Administrative l.as Judge founld both investigatory and disciplinary elements in the l)eutsch and Slater interviews. contends that the complaint onily encompasses allega- tions relating to disciplinary intersiess Any violation predicated on denial of Weingarten rights at an investigatory interview is, according to Respondelt, outside the scope of the complaint We find no merit in Re- spondent's contention The complaint broadly refers t a refusal "lo allos union representatives to) participate in interviews of employees t which discipline was handed out" Ihe essence of a Weingurten violatiil is the denial, upon request, of union representation at a investigalory in- terview which the employee reasonlably helieves would result i disci- pline. Whether discipline is in fact imposed is niot critical to he finding of a violation under Wetngarten. the complaint's uambiguous reference ItI denial of union representation at an intervsiew in which discipline is im- posed clearly placed Resplondenit onil otice that the Genleral Counsel as Conrinued IFXAC(), INC b35 finding that it violated Section X(a)(1) of the Act by curbing the representatives' role at the disciplin- ary discussions with Deutsch and Slater, Respond- ent argues that the Administrative Law Judge mis- interpreted the thrust of W'eingarIen by overlooking the Court's critical limitation of the representation right to interviews of an investigatory nature. Re- spondent contends that the Administrative Law Judge mischaracterized the Deutsch and Slater meetings as having disciplinary and factfinding ele- ments, inasmuch as the decisions to impose disci- pline had been determined prior to the meetings, and Deutsch and Slater were summoned to those meetings solely for the purpose of imparting those decisions to them. Respondent further argues that, even assuming Section 7 of the Act, as interpreted by the Board in Certified Grocers, supra, extends the right to representation to disciplinary inter- views, there is no basis in the Weingarten decision for construing Section 7 as creating a right to ef- fective representation at a disciplinary or investiga- tory interview. This conclusion, Respondent as- serts, is supported not only by the Court's admoni- tion that the employer has no duty to bargain with the union representative at an investigatory inter- view, '' but also by its statement that "[t]he em- ployer . . is free to insist [at an interview] that he is only interested, at that time, in hearing the employee's own account of the matter under inves- tigation." '4 This latter statement, Respondent con- tends, clearly indicates that an employer may demand the silence of a representative during an interview at which discipline is discussed. Addi- tionally, Respondent argues that its policy of free discussion with the Union's Workmen's Committee and the availability of the contractual grievance mechanism obviates the need for union representa- tion at interviews where the employee is confront- ed with the possibility of disciplinary action. Final- ly, Respondent contends that the Administrative Law Judge's make-whole remedy with respect to Slater is contrary to Section IO(c)'s prohibition against backpay to an employee suspended for cause. ' In this connection, Respondent notes that the decision to discipline Slater had been made prior to the interview and was based on evidence obtained from sources independent of the inter- view. alleging a Sl.lall n Of Sec lat)( I) (of the Act under 14 igartlnur Ihere- fore, the ctniplallt fully apprised Respondent f the illlalton charged. litigated. and ullimatec fiiund h the Adrlninitratil- I .s Judge :l Ioingalrtie. upra ;at 251' 26) " Id at 2) , ScL. Itl) f th \ t pro rids i ll pcrll lllt par Ni ordelr I Sc It;e lrd sh1ll rquic li t riistalellntt t .in ind s, I- Li; as .i eIa plo I , Il cI IIp I o IlIL hll ul. or( tI 1e p;i IfCt tI o hl[ t I li' l a, k p' . if wih [ti d lual -ji iup'drd'td or Id harg d, 'I r bI u,, [I r11pL.ls s1ltiplill I Analysis The proper disposition of this case turns on the Supreme Court's decision in W4eingXaren, and its ex- plication of the nature and scope of an employee's right to representation under Section 7 of the Act. According to the Court, Section 7 guarantees an employee the right to union representation at an in- vestigatory interview with the employer when the employee reasonably fears it may result in disci- plinary action. Section 7's mandate that "[e]mployees shall have the right . to engage in concerted activities for the purpose of mutual aid or protection" necessarily included, in the Court's view, the right to have the assistance and support of a union representative during a con- frontation with the employer where the employee reasonably perceived a threat to his job security. The right, however, is not absolute. The Court noted that the employer may forgo the intervie,, rather than submit to one in the presence of a union representative and may thereafter act on the basis of information obtained from other sources. 17 Likewise, the employee whose request for union representation is denied has he option of refusing to participate in the intervisv, thereby giving up any benefits that may accrue therefrom, or of pro- ceeding without representation. In Cerified Grocers, 8 c ted by the Administra- tive Law Judge, the Boarc held that the Supreme Court's decision in Weingaren applied to any inter- view, whether labeled "investigatory" or "disci- plinary," which the employee reasonably believes may result in disciplinary action being taken against him. The United States Court of Apeals for the Ninth Circuit denied enforcement of the Board's Order in that case, h lding that Weingarten did not extend the right to epresentation to an in- terview conducted solely t inform the employee i Bot th h B()ard ad tIh C I hal (xPrccdLI t IC" 1. 1 h. rightl to rcpresena;ltion does not xtlnl I crtain ordinll;Jr s 111L 1ll s1.11 tl VLe iiould not appl\ the rule to such run-of-lhe-nmill shop floor ,, crsatlins as, for exa; upl, tIhe givuilng Instruction, (or railillltg i needtld c rrcctilOls oif %.kork tu.chnique IiI lUch c;iscs there c.ann t normally be a re-asionahlbe basis fir a i eriploscc to fear that ail\ aIdrerse impact mayl result from the iT Itt r. lt., and ll ti si% \iie itiid Ihen ee lon rasonahle hbasis fir him i sc:,, he assistanrlic of his rep resentalxuc 42() U S a11 257 (qult ing Qualirl .ManlbrrlaturlL (r ,iipa- ti. 105 NlRB 107. 11 (IL72) ] Sec .tls Rudlacr I 'prci. Inc. 24 Nl NIoR N, I1 111 )7, \licrcin tlc Bii.ard h1ld that II,) clulllr llCtat it reprcsc1itiol l riiu . llc n il t' t i pltif It .1il;lI coIlfrolltcl ed i i liitl and i sked to patlltlclpat. i t 1 l it.r\ -. shich lihe rasi...abnh fcar nmas rstlt i disciplineic if I i.n Cilnploer ecrciscs hil prergatl. to dlspense k It t li tistl- g.;ltlr\ Inltcri t , I t and ther alfr Illlpt1i1i. e 11IlIPfIt lhic CIIIPIItt'- itl I', I t"''Tc Iltal Ita l1ll tiherbTh forte,-ci t I frlll I.l ll g tie IiattICr kis ll Ithc e plocl.r i .ilioithr cLItctx. ulh s1 iThe gri',.tucc priccs ' '227 NI R 1211 TEXACO, INC ti 06 I)i (ISI())NS ():OF NA I()NAI. I .A()R REI.AII()NS BO()ARI) of predetermined discipline."' We have recently reconsidcred our decision in Certified Grocers, con- cluding that it was wrongly decided on its facts and ov erruling it to that extent. Thus, in Baton Rouge Water Work.s Company, 2° which issued sub- sequent to the Administrative Law Judge's Decci- sion herein, a majority of the Board held that the right to representation under Weingarten does not extend to those employer-employee meetings where the sole purpose is the imposition of prede- termined discipline: [A]s long as the employer has reached a final, binding decision to impose certain discipline on the employee prior to the interview, based on facts and evidence obtained prior to the in- terview, no Section 7 right to union represen- tation exists under Weingarten when the em- ployer meets with the employee simply to inform him of, or impose, that previously de- termined discipline.21 However, the Board also stressed that it was not holding that there was no right to the presence of a union representative at a "disciplinary" interview. Nor was the right to representation necessarily foreclosed because the decision to discipline the employee antedated the interview. As the Board stated in Baton Rouge: [I]f the employer engages in any conduct beyond merely informing the employee of a previously made disciplinary decision, the full panoply of protections accorded the employee under Weingarten may be applicable. Thus, for example, were the employer to inform the em- ployee of a disciplinary action and then seek facts or evidence in support of that action, or to attempt to have the employee admit his al- leged wrong doing or to sign a statement to that effect, or to sign statements relating to such matters as workmen's compensation, such conduct would remove the meeting from the narrow holding of the instant case, and the employee's right to union representation would attach. 2 2 % R B (Crtifhid (;(cr, f (a/tlornia, Ld. 57 1 2d 449 1178 see al.o :1I/rid M Lpic. Inc. x'L.R.B., 57 F.2d 41)3 (9th Cir 1 9 7 X). %t, I rorn lrankr r ( mTlpuan v .. R. B., 549 F 2d 571 (9thl Cir 1')77) "' 246 N R No Ihl (1979) Ihid I /id In BHtro Rccgc, thCe Board, Ilo avoid obscuring the issue h coIIIntllnued referenllce I) hc labcl, is n'estigatory" and "disciplinary." simply helil thait Ihe right t reprcscilatilon included not orlly those citer- ;.k- oI a purcl. inlvctstigiltl r) nalllure, hut hosc in s hich discipline is Illtted o11t s Io hg as tile emlploIer is still actively pursuing inforlCatiol tilirilig the litcr. ic hearing on the alleged misconduct, such as seeking t ill Almission of ll lConductiC In light of the foregoing, it is incumbent upon us first to determine whether Deutsch and Slater were entitled to representation under Weingarten. Turn- ing to Deutsch's interview, we find that Respond- ent's meeting with Deutsch was clearly of the kind envisioned by the Court in Weingarten as warrant- ing the presence of a union representative. Thus, Guidinger credibly testified that Linnell sought and secured an admission from Deutsch that he had failed to attach his locking device to the tower's fan switch. This testimony was essentially corrobo- rated by Deutsch, who testified that Linnell in- quired as to his account of the incident. It is clear therefore that Respondent went beyond the act of imposing discipline and sought and secured an ad- mission of possible misconduct. Such an inquiry in- dicated that Respondent was continuing, on a sub- stantive basis, its investigation of the incident. In these circumstances, Deutsch was entitled to repre- sentation. Although Deutsch was entitled to representation, Respondent, as noted, did provide such representa- tion, conditioned on the representative's remaining silent throughout the interview. The representa- tive's role was, in effect, circumscribed to that of a passive observer, rather than an active participant. We are therefore presented with the issue of whether the right to representation under Weingar- ten includes the right not only to the presence of a representative, but to the active assistance of that representative during a confrontation with the em- ployer which threatens the employee's employment security. We have recently addressed this issue in South- western Bell Telephone Company, 251 NLRB No. 61 (1980). There we held that the Court in Weingarten intended to strike a balance between the right of an employer to investigate the conduct of its employ- ees at a personal interview, and the role of the rep- resentative present at such an interview. While we noted the Court's admonition that the presence of a representative "need not transform the interview into an adversary contest,"22 we nevertheless rec- ognized that the Court limited the employer's right to regulate the role of the representative at the in- terview. In short, such regulation cannot exceed that which is necessary to ensure the "reasonable prevention of such a collective-bargaining or ad- versary confrontation with the statutory repre- sentative." 24 In Southwestern Bell the employer also demanded the silence of the union's repre- sentative at the outset of the interview. We held that in so doing the employer had gone beyond the I2' id. (citing W itingrlen at 23) i4 bid. TEXACf(). INC bounds of regulation reasonably necessary to avoid such a confrontation with the statutory representa- tive. Accordingly, in agreement with the Adminis- trative Law Judge, we likewise hold here that Re- spondent violated Section 8(a)(l) of the Act by denying to Deutsch the assistance of his union rep- resentative. We also hold that the appropriate remedy for a Weingarten violation in these circum- stances is, as found by the Administrative Law Judge, the expungement from Respondent's records of all references to the reprimand received by Deutsch. 2 5 However, unlike the Administrative Law Judge, we do not find that Respondent violated Section 8(a)(l) of the Act by demanding the silence of Union Representative Mann at Slater's interview. In sharp contrast to the Deutsch interview, Re- spondent engaged in the simple, ministerial act of imposing upon Slater discipline which has been de- termined in a final and binding manner prior to the interview. Thus, it is uncontroverted that Fair began the interview by handing Slater the letter in- forming him of his 3-day suspension and the rea- sons therefor. At no time did Fair cross the line be- tween an investigatory interview and one solely for the purpose of imposing discipline by seeking or se- curing information from Slater concerning his al- leged misconduct. Accordingly, Respondent was not statutorily obligated to furnish representation to Slater at the interview; and thus it is irrelevant that Respondent effectively muted the representa- tive's role at the interview. We therefore find that with regard to the Slater interview Respondent committed no Weingarten violation. Having found that Respondent did not violate the Act with regard to Slater, we hereby dismiss the complaint in that respect and shall modify the Administrative Law Judge's remedy accordingly. 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, Texaco, Inc., Anacortes, Washington, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: i. Substitute the following for paragraph (a): "(a) Denying to any employee, upon request, the presence and assistance of his union representative 2s For the rea.on. .et forth in his dissenting opinion in Ihis caie. Member Truecdale Aould not order Respondent to epunge front it, r- cords all referenc. to he reprimnnd rcci'ed hb Deutch at an interviev which the eniployee reasonalbly be- lieveS may result in disciplinary action." 2. Substitute the following for paragraph 2(a): "(a) Expunge from its rec)rds any references to the reprimand received by employee Richard Deutsch in September 1977. or any conduct lead- ing thereto." 3. Substitute the attached notice for that of the Administrative Law% Judge. CHAIRMAN FANNING and VIEMIiR PENII.I , con- curring: Although we are in accord with the result reached by our colleague , we disagree with cer- tain portions of the ratiorale expressed in the ma- jority opinion. In essence, our disagreement centers upon the majority's continued maintenance of a substantive distinction between investigatory inter- views and disciplinary interviews regarding an em- ployee's right to the presence of his union repre- sentative. As we expressed in our respective dissenting opinions in Baton Rouge Vater Works CompanUn, 2' it is our view that an employee's right to union representation at a disciplinary interview was firmly established in Board law, prior to the Su- preme Court's decision in Weingarten, and a close reading of Weingarten reveals that that decision simply extended previously existing employee rights in disciplinary interviews to investigatory in- terviews. Thus, we believe that the excessively narrow reading of Weingarten engaged in by the Baton Rouge majority served to eliminate the very right to representation from which the Weingarten right sprang. Therefore, ulike the majority in both Baton Rouge and the instant case, it is our position that an employee is entitled to union representation upon his request at both investigatory and disci- plinary interviews. In the instant case, we elieve that Deutsch was plainly entitled to a union representative regardless of whether his interview was termed investigatory or disciplinary. Although Deutsch was provided with a representative, Respondent conditioned the representative's presence pon his remaining silent at the interview. We agree with the majority that such circumscription of the representative's role violated Section 8(a)(1) cf the Act. 27 With respect to the Slater interview, the major- ity finds that the condition of silence placed upon Slater's union representative was irrelevant since Slater's was a disciplinary interview within the meaning of Baton Rouge to which no W'eingarten protections attach. Since, as noted above, we do 2' 240 NLRH No Il (1479) 27 Sio h.ilsrtli H W /i/ l)ph o,ic ColputI v 251 NI R No hil t i8() ) (6A I)CI'SI()NS ()F NATIO)NAI LABOR RI A'lIO)NS 3B()ARI) not subscribe to such distinctions, we do not agree with the majority's rationale. Rather, we find that the Slater incident was simi- lar to the situation presented in 4moco Oil Compa- ny. 2 1 I that case, the Board found no violation of Section 8(a)(1) of the Act since the facts revealed that the respondent "made no attempt to question [the employee], engage in any manner of dialogue, or participate in any other interchange which could be characterized as an interview." 29 Similar- ly, in the instant case, Respondent did not engage Slater in any form of dialogue or interchange which could be termed an interview.3 0 Conse- quently, Respondent did not act in contravention of the requirements of Weingarten, and, therefore, the condition of silence placed upon Slater's repre- sentative was not a violation of Section 8(a)(1). 3 Accordingly, we would dismiss that portion of the complaint. Finally, we agree with the majority that Deutsch should be accorded a make-whole remedy, since, as is found by the majority, Respondent "sought and secured an admission" from Deutsch that he had engaged in wrongful conduct. 3 2 In addition, even without reference to other de- cided cases, we find Member Truesdale's dissent from the remedy to be plainly at odds with the ma- jority decision on the merits in which he joins. For, in discussing the Deutsch interview, the majority states: It is clear therefore that Respondent went beyond the act of imposing discipline and sought and secured an admission of possible misconduct. Such an inquiry indicated that the Respondent was continuing, on a substantive basis, its investigation of the incident. Having so found, Member Truesdale then con- cludes in his dissent from the remedy that Re- spondent did not rely on information obtained at the unlawful interview in its decision to discipline. It is extremely difficult to discern how an em- ployer could (I) decide to continue its investigation of employee misconduct through an interview of ' 2 NI R 551 (178) See also K-Muart (Corporation. 242 NLRB 855 197')) '2 2t8 NI R I 552 Sec i li Mc-niber 'Penello's coUncurring pilnioli in Ieueao. Inc . 247 NI.RI No 56 (1 9 8) ," We do note. however. that, had Respondent engaged Slater i some form of dialogue or inlerchange which could he termed an iterview, the requirement that Slaler's representalive remain silent xvould, in our iev. violate Sec 8{a)(l) of the Act See Soulhwestern Bell l.liphone Compan. iupru at fi 14 :2 See Iiiitlino BeIll ilphone (C'mpany. 251 N RH No. 128 (I980). where the liBoard. icluding Member Truesdale, rdered a nlake-hole remned5 ill i sitiiltioal here the enlployer sought alld obtained al admis- so l it' ris'ondullI from the ernplse subjected Io atl ulawful inler- ~. it'% the accused employee, (2) affirmatively solicit from the employee information relating to the miscon- duct, and (3) in fact succeed in obtaining perhaps the most telling information available to merit a de- cision to discipline and yet be found not to have based its disciplinary decision, in any way, on the information it was so successful in securing.:" MlMBHER TRUFSI)AI.1, dissenting in part: I agree with my colleagues that Respondent vio- lated Section 8(a)(l) of the Act by denying to em- ployee Richard Deutsch the active assistance of his union representative at an investigatory interview. I do not agree, however, that-under the circum- stances of this case-the proper remedy for that violation is to order Respondent to expunge from its records all references to the reprimand received by Deutsch at that interview. In its recent decision in Illinois Bell Telephone Company, 251 NLRB No. 128 (1980), the Board set forth the remedial stand- ard appropriate for Weingarten violations. There the Board held that: [W]here the General Counsel shows that an unlawful investigatory interview has occurred, and that the employee was disciplined or dis- charged for conduct which was the subject of the interview, the burden then shifts to the em- ployer to show that its decision to discipline or discharge was not based on information which it obtained at the interview. 3 4 Although my colleagues agree in theory with this wording of the remedial test, in practice they apply a different standard for determining the ap- propriate remedy for a Weingarten violation. Thus, their approach to formulating the appropriate remedy is simple: When an employer has conduct- ed an unlawful interview, the Board will assume, without further inquiry, that the information ob- tained by the employer at the unlawful interview had a direct and causal relationship to the employ- er's disciplinary decision. Based on this assumption, the Baord will impose a make-whole remedy and rescind the discipline. The obvious effect of this approach is to order a make-whole remedy in nearly all cases where a Weingarten violation is found. My colleagues at- : Member Truesdale's accusatilon hat, in ordering a make-whole relmedy for Deutsch, we have applied a standard different from that set out il llirnor Bell Telephone Comnpany. 251 N RB N 128 (1980) is somewhat puzzling. Since. ctitsisterl t ith llinois Bell, he likewise re- quires a respondent to prove that it did not rely on infornmation obtained during all unlavful interview. we must assume that he likese considers restloration of the status quo anite to he the primua fuic appropriate remedy Thus, to the extent there is disagreement as to the appropriate rerred for Respondent's iolnatli of l)eutsc h's rights, it is necessaril a disagreement on the facts, rather than the legal principle Unlike Member l'ruesdale. Ae d nt finld tIhal Respondenlt met it, hurdct :" Ihid (18 TEXACO. INC tempt here to minimize the per se nature of their approach by characterizing the admission secured from Deutsch as "the most telling information available to merit a decision to discipline." That may be true but it does not answer the critical question of whether Respondent in fact relied on that admission in reaching its decision to discipline Deutsch. Instead, they merely restate what is essen- tially the legal predicate for a Weingarten violation: An employer must have sought substantive, as op- posed to trivial or irrelevant, information during the interview bearing on the subject of the inter- view. The remedial approach adopted by my col- leagues is appealing from the standpoint of simplic- ity and ease of application. But steadfast adherence to such an approach runs counter to the Board's normal case-by-case determination of the appropri- ate remedy and, in cases like this one, transgresses the statutory admonition that our remedies be com- pensatory rather than punitive. While the language of Section 10(c) 35 of the Act is not directly appli- cable to the factual situation here, i.e., discipline short of suspension or discharge, the logic of that section is nevertheless applicable and mandates that a make-whole remedy not be ordered when the employer, as here, has met its heavy burden of showing that it would have imposed discipline in the absence of the unlawful interview.3 6 In short, the Board must resist the temptation, to which my colleagues have succumbed, of adopting a remedial approach whose only appeal lies in its simplicity. Instead, the Board should come to grips with the difficult, but critical, issue of determining whether the employer has satisfied its burden of establishing that, in the absence of the unlawful interview, it would have taken the disciplinary action it did. My colleagues' misapprehension of the remedial issue in these cases and their misapplication here of the Illinois Bell test is exemplified by their compari- son of this case with the facts and remedy pro- vided in Illinois Bell, a case clearly distinguishable on its facts. In Illinois Bell, the employer, based solely on the information obtained at the unlawful interview, made the decision to suspend an employ- ee for improperly adjusting long-distance telephone bills for the inmates of a prison. The Board ordered the employer to reinstate the employee and to ex- 5 Sec. 10(c) of the Act prov ides in pertinent part: No order of the Board shall require the reinstatement of any individ- ual as an employee who has been suspended or discharged or the payment to him of any back pay. if such individual was suspended or discharged for cause a' The burden is upon the respondent to establish clearly that it would have imposed the discipline it did in the absence of the unlawful inter- view Any doubt revealed in the record in this regard would he resolved against the respondent punge from its records any reference to the suspen- sion because it was clear that, absent the employ- ee's admission of misconduct at the interview, the employee would not have been suspended. Here, by contrast, Respondent had made the de- cision to discipline Deutsch prior to the interview based on information obtained during a preinter- view investigation. Thus, Supervisor Linnell al- ready had information-based on his own investi- gation-that Deutsch had failed to attach his lock- ing device to the tower's fan switch as required by Respondent's standing instructions. Based on this information, Linnell had already determined prior to the interview that discipline was appropriate. In these circumstances, to order Respondent to ex- punge from its records any references to the repri- mand received by Deutsch would do more than return the employee to the status quo: it would put Deutsch in a better position than he would have been in had no unlawful interview occurred. The proper remedy is simply to order Respondent to cease and desist from unlawfully restricting the representative's role at a Weingarten-type inter- view. Accordingly, I dissent from the remedy im- posed here. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT deny to any employee, upon request, the presence and assistance of his union representative at an interview which the employee reasonably believes may result in disciplinary action. WE WIl.L NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the National Labor Rela- tions Act, as amended. WE wiI expunge from our records any ref- erence to the reprimand received by employee Richard Deutsch in September 1977, or any conduct leading thereto. TEXACO, INC. DECISION STATEMENT OF THE CASE GEORGE CHRISTENSEN, Administrative Law Judge: On April 11, 1978, 1 conducted a hearing at Seattle. Washington, to try issues raised by a complaint issued on t)39 64() DECISIONS O()F NAIONA I.AB()OR REI.ATIONS O()ARD December 15, 1977,1 on the basis of a charge filed by Oil, Chemical and Atomic Workers Local 1-591, Oil, Chemical and Atomic Workers International Union, AFL-CIO,2 on November 10. The complaint alleged that Texaco, Inc.,:' violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, 4 by requiring union representatives brought by aggrieved employees to disciplinary confer- ences affecting such employees either to remain silent during the conferences or leave. While the Company conceded it conducted disciplin- ary interviews with employees and insisted any union representatives brought to those interviews by affected employees either remain silent during the interviews or leave, it contends that conduct was not violative of the Act because: 1. The interviews were not "investigatory interviews" within the meaning of Weingarten.5 2. The Company was not under any duty to bargain with the Union during such interviews. 3. The Company permitted the Union to discuss mat- ters raised in the course of such interviews in separate meetings between the Company and the Union. 4. The Union waived its right to participate in such in- terviews by actions taken by it in the course of the nego- tiations leading to the execution of the currently effec- tive contract between the Company and the Union.6 The issue before me is whether the Company violated the Act by denying employees the right to have their union representative accompany and effectively represent them when called by management to attend interviews at which their alleged misconduct and/or discipline there- for are discussed and assessed. The parties appeared by counsel at the hearing and were afforded full opportunity to produce evidence, ex- amine and cross-examine witnesses, argue, and file briefs. Briefs have been received from the General Counsel and the Company. Based upon my review of the entire record,7 observa- tion of the witnesses, perusal of the briefs, and research, I enter the following: FINDINGS OF FACT I. JURISDICTION AND LABOR ORGANIZATION The complaint alleges, the answer admits, and I find at times pertinent the Company was a Delaware corpora- tion engaged in the production, refining, and marketing of petroleum products; that it operated a refinery at Ana- cortes, Washington; that during the 12 months preceding the issuance of the complaint, a representative period, it sold and shipped from its Anacortes refinery products valued in excess of $500,000 to points outside the State Read 1977 after all further date references omitting the year Hereafter called the Union. a Hereafter called the Company. 4 Hereafter called the Act .VL.R.B. v. J. Weingarten, Inc.. 420 U.S 251 (1975). s The Company produced no evidence in support of this contention and in its brief moved this defense (alleged as its fourth affirmative de- fense in its answer to the complaint) be stricken The motion is granted. The Colmpany moved to correct portions of the transcript The motion is granted. of Washington and purchased and caused to be delivered to its Anacortes refinery goods and services valued in excess of $50,000 from States outside of the State of \Washington; and that, based on the above, the Company was an employer engaged in commerce in a business af- fecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. The complaint further alleges, the answer admits, and I find at times pertinent the Union was a labor organization within the meaning of Section 2(5) of the Act. 1I. HEF AI.LLE-itD UNFAIR l.ABOR PRACIICES A. Facts On January 24, 1977, the Company and the Union ex- ecuted a contract covering the rates of pay, wages, hours, and working conditions of production and mainte- nance employees at the Anacortes refinery, with the usual exclusions, for a 2-year term commencing January 8, 1977. That agreement is one of a continuous series fol- lowing the Union's 1958 certification by the Board as the exclusive collective-bargaining representative of those employees. The currently effective contract contains the usual recognition and grievance arbitration provisions. This case arose over disciplinary interviews of two employees within the certified unit covered by the con- tract, pipefitter Richard Deutsch and machinist Travis Slater. The Deutsch incident occurred in late September, when Assistant Foreman Gene Vaughn was requested to assign a pipefitter to install a length of copper tube as a vent line on a large fan mounted within a cooling tower at the refinery. Vaughn directed Deutsch to install the line, telling him it was a 5-minute job. At the time Deutsch climbed the tower and began working, a boiler- maker (Ron Robinson) was also working on the job. Deutsch noted the ball element of the electrical motor operating the fan had been removed, so the fan was ino- perable. While Deutsch was still working, Robinson left the tower and removed his lock from the switch activat- ing the fan.8 During the period Deutsch was still working on the line installation, boilermaker helper Jim Tracy asked Ed Linnell, head foreman over the pipefitters, boilermakers, and welders, if he could turn on the fan to see if it was operating properly. Linnell told him if there was no lock on the switch activating the fan he could assume the work was completed and the fan could be tested. When Tracy approached the tower, however, he noted the switch was unlocked and Deutsch was still working on the job, and brought the situation to Vaughn's attention. Vaughn in turn brought it to Linnell's attention. Linnell interviewed Tracy and Robinson. Tracy told Linnell the switch was not locked while Deutsch was the sole worker on the fan; Robinson told Linnell he advised Deutsch he was leaving the tower and was removing his lock, and that he suggested Deutsch attach his lock on " Each craftsman at the plant carried a locking device for use in lock- ing up any switch controlling electrically operated equipment while the) are working on it In this case. the switch for the fan was located at the base of the tower TEXACO, INC 641 the switch.' On completing his investigation, Linnell de- cided to interview and reprimand Deutsch and instructed Vaughn to have Deutsch report to his office.to Deutsch was aware of Linnell's investigation and anticipated he was going to be interrogated and disciplined over the in- cident; because of those fears, he asked John Guidinger, the acting union steward in his department, to accompa- ny and represent him at the interview. Guidinger agreed and he and Deutsch proceeded towards Linnell's office. Linnell observed the two as they approached his office and telephoned J. R. Steers, one of the Company's em- ployee relations department representatives, for advice on what role he should permit Guidinger at the inter- view. Steers advised him to permit Guidinger to attend the interview, but only as a silent observer of what tran- spired. As soon as the two men entered his office, Linnell in- formed Guidinger that Linnell would allow him to sit in on the interview, but he would not have any say and could only observe. Linnell recited the plant safety regu- lation to Deutsch requiring all craftsmen to lock out the switch activating any equipment they work on while work is in progress, secured an admission from Deutsch that he at no time put his lock on the switch activating the fan while working on it, informed Deutsch his failure to comply with the regulation had endangered both his life and the lives of other men on the job, heard Deutsch's disclaimer of knowledge of the regulation, and issued a reprimand to Deutsch for failure to follow the regulation. I I In the course of the interview (after Linnell recited the language of the regulation), Guidinger started to make a comment; he was interrupted by Linnell, how- ever, and told either to keep quiet or leave. Guidinger subsided and remained silent for the balance of the inter- view. The Slater incident began at or about 2:40 p.m. on Oc- tober 26, when an assistant foreman in the machine shop, Gaylord Greenough, observed Slater at the operator's shack on the Company's premises with a cup in his hand. Greenough returned to the area about 25 minutes later and saw Slater and his helper at the shack. Greenough asked Slater if he had completed his current assignment (greasing valves in catalytic reforming and hydrotreater 9 Neither Tracy nor Robinson testified at the hearing; I therefore do not find that Rohinson told Deutsch he was removing his lock and sug- gested that D)eutsch affix his own, but only that Robinson slated he had done so to Linnell B" This instruction was issued a day or two after the incident occurred " Deutsch, G(idinger, and Linnell all testified that Linnell asked Deutsch whether or not he placed his lock on the switch while on the joh and Deutsch admitted he did not; Deutsch and Linnell alo testified that Deutsch disclaimed any knowledge of the safety regulation. Linnel!. however, testified that these twov exchanges occurred on the plant floor at a time preceding the intersiew and did not take place during the inter- iew, while Deutsch and Guidinger testified the former exchange took place during the inters iew. Deutsch testified the latter exchange also took place during the interview' (Guidinger could not remember whether it did or not). and Deulsch testified he had only one exchange with l.in- nell concerning the entire incident and that occurred at Linnell', office Since Guidinger as only present at one exchange hetween Linnell and Deutsch, he was certain l.innell extracted an admission from Deusch concerning his failure to attach his locking device at the interliew, and both (iidinger and Deutsch impressed me as sincere witneses, concern- ing what hey could recall ofr the exchanges at the interview. I find the two exchange, in question occurred during the interxiew units). Slater replied in the negative, stating there ,was still a lot of work to do on the units. Greenough asked Slater and his helper to accompany him away from the shack and out of hearing distance of other employees at the shack. They complied. Greenough then asked Slater why he and his helper were not working at their assign- ment. Slater replied they had been lugging a heavy grease gun up the tower and were tired. Greenough di- rected them to return to work, stating the operators' shack was not a place for lounging and sitting arounid drinking coffee. The men returned to work and Green- ough reported the incident to his superior, Charles Fair. Fair prepared a 3-page document detailing the incident as reported to him by Greenough, recited a number of earlier incidents of alleged Slater misconduct and the re- ceipt by Slater of three earlier verbal warnings over his work performance, and closed with a statement that Slater was suspended for 3 days and risked more severe discipline in the future if his conduct did not improve. On October 28 Fair summoned Slater to his office. Greenough was also present. When Slater arrived, he asked if the interview involved discipline. Fair replied it did. Slater requested union representation. Fair asked who Slater wanted and Slater replied he wanted Frank Mann of the Union's Workmen's Committee " to repre- sent him. Fair replied that he would permit Mann to attend the interview but he could not speak, and repeat- ed this to Mann when Mann entered his office. Fair then told Slater, while he did not like to do it, he was giving him a 3-day suspension, and handed Slater the document described above. Slater read the document and said he was drinking water, not coffee, and Greenough was wrong in stating he was in the operators' shack drinking coffee; he also stated he was in the shack only a few minutes on the second occasion to get a drink of water and rest a little because he was tired. 1' Fair started to ask Greenough if he saw Slater drinking coffee but stopped, saying it did not matter, the discipline stood, and Slater could take the matter further through the Union if he desired. Fair then informed Slater of the dates he would be suspended and the date he was to return to work. Slater was off the job on the 3 days specified and returned to work thereafter. In a subsequent meeting between company representa- tives and the Union's Workmen's Committee (on No- vember 8), the Union asked what the Company's position was concerning union representation at disciplinary inter- views. The Company' 4 replied it was management's po- sition that union representatives could attend such inter- views but not particpate, i.e., they could attend only as silent observers. The Union remonstrated, stating, when- ever an employee desired union representation at such an interview, the Union was entitled to attend and to par- 12 That Commitllee handle, negotiations and grileaance processing :' Slater testified at the hearing he left he hack after (ireenough', first ightinlg of him there. Esent to w ork, and returned to the shack for a drink of water (alleging hcre sas no fountain on or near the job) ad to rest for a minute whell Greenough returned and interrogated him (Fair and (ireelough testified the men ere pernitted Io take unscheduled breaks from time to time ) " The Conlpanl w.as rcplescnited h) It, peronlnel director J I Lrong. and his aIsIstants. J R Steers iind r I1) Schuh TEXACO, INC o41 642 I)DECISIONS OF NAIIONAL LA()OR RELAI'IONS BO)ARD ticipate in the proceedings. The Company replied it was adhering to its position. '" At that same meeting, union objections to the Slater suspension were discussed, with- out resolution. i, It was either admitted, stipulated, or undisputed and I find Long, Fair, Linnell, Greenough, Vaughn, Steers, and Schuh were supervisors and agents of the Company acting on its behalf and Guidinger and Mann were agents of the Union acting on its behalf at all times perti- nent. B. Analysis and Conclusions The Supreme Court's Weingarten decision'7 finally re- solve a long running controversy between management and labor over the issue of whether or not an employee summoned by management to an interview which the employee reasonably believed might result in his disci- pline was entitled to representation by his union at such conference. Prior to the Weingarten decision, manage- ment maintained an employee was not entitled to union representation until, unless, and after management had levied a disciplinary penalty and labor contended an em- ployee was entitled to union representation fiom the time he requested it. Weingarten essentially sustained the latter position. The Company contends, however, the Weingarten principle only extends to investigatory interviews, i.e., in- terviews to which the employee is summoned by man- agement so management may question him concerning an incident it is investigating to determine whether his conduct warrants discipline, and the Deutsch and Slater conferences occurred after such investigations had been completed and management decisions reached to levy discipline, and were called solely for the purpose of ad- vising Deutsch and Slater of the nature of the discipline and reasons therefor. The Company further contends its refusal to permit Guidinger and Mann to speak or in any other manner participate in the Linnell-Deutsch and Fair-Slater conferences and its general policy of refusing a participative role to the Union at similar conferences are not violative of the Act, since the Company is will- ing to and has discussed the Slater and other disciplinary actions at regular monthly Company-Workmen's Com- mittee meetings and a disciplined employee and the Union may challenge disciplinary actions (with full par- ticipation by the Union) within the grievance-arbitration procedures established by the Company-Union contract. A short answer to the Company's contentions is that the Deutsch and Slater conferences were mixed; i.e., they had elements of both an investigation and assessing of discipline. When Deutsch and Slater were summoned to their re- spective interviews, they were aware management was investigating their previous conduct described hereto- fore, they reasonably anticipated they were being sum- moned because of that conduct, and they were fearful their jobs were in jeopardy and apprehensive of manage- I [.ong confirmed it vwa and is company policy to deny the Union any role in such intrieress other than silent observer. "t lonllg It:sified company and unionll represenltatives discussed such mailers at their regular monthly meetings ' See fi 5. uprua. ment's intentions at the interview. 8 They were desirous of union protection against any attack on their job status in view of their anticipations and fears, and therefore sought and secured such representation. Their fears and anticipations were well founded Linnell extracted admis- sions from Deutsch, berated him over his conduct, and refused to give Guidinger any opportunity to explain, refute, or mitigate Deutsch's conduct; Fair handled the Slater interview similarly. Deutsch and Slater were denied any effective union representation, completely thwarting their purpose in seeking it. Had Guidinger par- ticipated in the Linnell-Deutsch interview, he may well have developed Deutsch's testimony (at the hearing) that he did not hear what Robinson shouted to him as Robin- son left the tower; that he was unaware Robinson re- moved his lock from the fan switch while he was com- pleting his work, that no risk existed and a considerable time was saved from his remaining on the tower and completing his work after Robinson left the tower (since the fan motor was inoperable, his work was completed in a short time, and it would have taken considerable time to climb down the tower, affix his lock, and climb up again to complete the work); and had Mann participated in the Fair-Slater interview, he may well have developed Slater's testimony (at the hearing) he left and returned to the shack between Greenough's arrivals there; he (and others) made a regular practice of taking short rest breaks, and management was aware of and permitted this; some of the alleged infractions which Fair cited as basis for the severity of the discipline assessed were inac- curate or explainable, etc. In such case, Linnell and/or Fair might have been persuaded to either desist from or soften the disciplinary penalty assessed, and at the very least such participation may have persuaded Deutsch, Slater, Guidinger, and Mann of the fairness of the inter- view and induced an acceptability of the result rather than resort to the grievance-arbitration procedure to de- velop such facts, when attitudes have hardened. As Justice Brennan stated in the Weingarten decision (420 U.S. at 262-264): A single employee confronted by an employer in- vestigating whether certain conduct deserves disci- pline may be too fearful or inarticulate to relate ac- curately the incident being investigated, or too ig- norant to raise extenuating factors. A knowledge- able union representative could assist the employer by eliciting favorable facts, and save the employer production time by getting to the bottom of the in- cident occasioning the interview. Certainly his pres- ence need not transform the interview into an ad- versary contest. Respondent suggests nonetheless that union representation at this stage is unnecessary because a decision as to employee culpability or dis- ciplinary action can be corrected after the decision to impose discipline has become final. In other * For all hey knew, nmlalagemelt might had intended to interrogate Ihern itensively concerninig their conducl. secure dmaging admissions from them for future use ill the event the seure diciplined ad ubse- quently challenged that disciplone under he grievance-arbitration prosil- silons of the 'ompan-Uliion contract. tc I -XACO. INC t4I words, respondent would defer representation until the filing of a formal grievance challenging the em- plover's determination of guilt after the employee has been discharged or otherwise disciplined. At that point, however it becomes increasingly diffi- cult for the employee to vindicate himself, and the value of representation is correspondingly dimin- ished. The employer may then be more concerned with justifying his actions than re-examining them. In this case, the value of Guidinger's and Mann's rep- resentation at the to interviews reached the vanishing point! I find no merit in the Company's argument the above principles are inapplicable because Linnell and Fair in- tended only to levy discipline on Deutsch and Slater when they were summoned; certainly the two employees were not advised this was the sole purpose when they received their summons. In any event, I find the alleged purpose of the interviews irrelevant; in each case, the employee, reasonably apprehensive he was being sum- moned to an interviewv where his job status was threat- ened, sought and secured union representation, but as denied effective representation at the interview. 9 The Company's contention that its policy of "permit- ting" union representatives to discuss disciplinary actions at monthly union-company meetings and the availability of the grievance-arbitration procedures to process com- plaints over disciplinary actions preclude the finding of an unfair labor practice over its denial of effective union representation at disciplinary interviews is likewise with- out merit. Neither an employee nor his representative needs employer "permission" to exercise a right and function assured by statute and, as noted heretofore, the statute assures an employee, upon request, effective union representation at disciplinary interviews with the view such union participation may abort the proposed disciplinary action or avoid any need to resort to later bilateral discussions or formal, adversary proceedings. Based on the foregoing, I find and conclude that by denying requested effective union representation to Deutsch and Slater at their disciplinary interviews the Company violated Section 8(a)(1) of the Act. CoNctIUSIONS oi LAW I. At all pertinent times the Company was an employ- er engaged in commerce in a business affecting com- merce and the Union was a labor organization within the meaning of Section 2(2). (5), (6), and (7) of the Act. 2. At all pertinent times Linnell, Fair, Greenough, Vaughn, Long, Steers, and Schuh were supervisors and agents of the Company acting on its behalf and Gui- dinger and Mann were agents of the Union acting on its behalf within the meaning of the Act. 1 S Chmax LfIiohdon um (owrlpu'. Diwn,, A .4tnmar. 227 NRIl I 1189 (19771. also sc (e ,rjicfd (;nccr , (aliJorn;a. Lid 227 N RH 1211 (19771. lnernaiu l l.ad (iari ,r 1$r ,rx' I '1imon. pper South )Depart- ,,cni,. .t-1. -( 10 Qual/, 4anui(/l uri ('c ., I al. 42(1 t S 27h 1975) (,sutailng 195 N R 1971: and .l,%d 0,1 (iorporln. 19 N R 1052 X 1972) 3. By denying effective representation by the Union to Deutsch and Slater at their disciplinary interviews, the Company violated Section 8(a)(I) of the Act. 4. The aforesaid unfair labor practices affected com- merce as defined in the Act. 'flit RI I)Y The Company contends that, even if its conduct al- leged as an unfair labor practice in this case violated the Act, it should not be directed to rescind Slater's 3-day suspension and reimburse him for the pay lost on the ground it had cause for levying the discipline. I reject the contention. The Board normally exercises its remedial powers to make an employee whole when his statutory rights have been violated, and the only practicable way to rectify the Company's interference with Slater's rights is by restoring him to status quo ante. i.e., to the position he was in before the Company inter- fered with his Section 7 rights. If the Company, after such restoration, wvishes to properly conduct a disciplin- ary interview and levy discipline against Slater for his conduct on October 26 in which. at Slater's request, the Union effectively participates, it may do so (unless other- wise barred). Having found the Company violated the Act by deny- ing Deutsch and Slater the effective union representation they requested at their disciplinary interviews, I shall recommend the Company cease and desist from similar denials in the future, expunge from its records any refer- ences based on the conduct which led to Deutsch's repri- mand and Slater's suspension, rescind Deutsch's repri- mand and Slater's suspension, reimburse Slater for his wage losses resulting from that suspension, with interest on the sum due. Backpay and interest are to be comput- ed in the manner prescribed in IK .f bolworth Compa- ny, 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977),2) and post appropriate notices. On the basis of the foregoing findings of fact, conclu- sions of law. and the entire record, and pursuant to Sec- tion lO(c) of the Act, I recommend the issuance of the following recommended: ORDER2 1 The Respondent, Texaco, Inc., its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Denying effective union representation to employ- ees so requesting when summoned to disciplinary inter- views. (b) In any like or related manner interfering with, co. ercing, or restraining its employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: " See. generaills. I.. P/ ln & h' l ttnkuii ( o. 13 N Rti 716 (fi2) In' the . t il o cu .. opi.ns arte filed a', pro Idel h Se, 102 4 of the Rulcs arid Regulatillns of1 IIh N;liolll I abor Rlaii , ll ;loard, thet {i(Jgllsl. tu CIIIc s01s. and;111 rccilrnmenlildC I )ritr herei shall. -as prolxiclcd in Sec 1(12 48 if 1he Rule' and Rgulla.ltion .he ilopl h the Board and hecme ils fidillgs, C.ocluli onll d. l ll1 I ()ltil l d al 1 I o hll cIl s IhereCo shall he deemed '. is . c 1eni all purp.s. tEXACO. INC e)43 644 DECISIONS OF NATI()ONAI I.ABOR REL.AII()NS BO()ARD (a) Expunge from its records any references based on the conduct which led to the Deutsch reprimand in late September and the Slater suspension on October 28, re- scind the Deutsch reprimand and the Slater suspensin, and reimburse Slater for the wages he lost as the result of that suspension in the manner set out in "The Remedy" portion of this Decision. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copyiig, 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 the Company's refinery at Anacortes, Washington, copies of the attached notice marked "Ap- pendix B." 2 2 Copies of said notice, on forms provided by :2 In the eent thai this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by the Regional Director for Region 19, after being duly signed by the Company's authorized representative, shall be and posted by it 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 the Company to insure the notices are not altered, defaced, or covered by other material. (d) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply with the Order. 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 he National Labor Relations Board"