The Detroit Edison Co.

National Labor Relations Board - Board Decisions

May 29, 1975

218 N.L.R.B. 61 (N.L.R.B. 1975)

THE DETROIT EDISON COMPANY 61
The Detroit Edison Company and Local 223, Utility
Workers Union of America, AFL-CIO. Case 7-
CA-11101
May 29, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On October 23, 1974, Administrative Law Judge
Benjamin B. Lipton issued the attached Decision in
this proceeding . Thereafter, the Respondent filed
exceptions and a supporting brief. Subsequent
thereto , the U .S. Supreme Court issued its decisions
in N.L.R.B. v. J. Weingarten, Inc.,' and International
Ladies' Garment Workers ' Union, Upper South De-
partment, AFL-CIO v. Quality Manufacturing Co.2
Pursuant to the invitation of the Board, the Respon-
dent and the General Counsel each filed a statement
of position with respect to the effect of the Supreme
Court's opinions on the instant proceeding.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three -member panel.
The Board has considered the record and the
attached Decision in .light of the exceptions, brief,3
and statements of position and has decided to affirm
the rulings , findings, and conclusions of the Adminis-
trative Law Judge and to adopt his recommended
Order.4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Board Act, as amended, the National
Labor Relations Board adopts as its Order the
recommended Order of the Administrative Law
Judge and hereby orders that the Respondent, The
Detroit Edison Company, Detroit, Michigan, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
1 420 U.S. 251 (1975).
2 420 U.S. 276 (1975).
3 The Respondent's request for oral argument is hereby denied as, in our
opinion, the record, exceptions, brief, and statements of position adequately
present the positions of the parties.
4 In the absence of exceptions by the General Counsel or Charging
Party, Members Fanning and Jenkins adopt, pro forma, the remedy
provided by the Administrative Law Judge.
DECISION
STATEMENT OF THE CASE
BENJAMIN B. LIPTON, Administrative Law Judge: This
case was tried before me on September 10, 1974,1 on a
218 NLRB No. 21
complaint by General Counse12 alleging that Respondent
violated Section 8(a)(1), of the Act. Beefs from General
Counsel and Respondent have been duly considered.
Upon the entire record, and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION
Respondent is a public utility engaged in the production,
sale; and distribution of electrical power and related
products. This proceeding solely involves the facility at
Warren Service Center in Detroit, Michigan. During the
calendar year 1973, Respondent had a direct inflow in
interstate commerce valued in excess of $5 million, and its
sales to customers within its service area are valued in
excess of $250 million. Respondent admits, and I find, that
it is engaged in commerce, and that the Union, as appears
in the case caption, is a labor organization within the
meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Issue
Whether Respondent violated Section 8(a)(1) by refusing
the request of Kenneth Droste for representation by the
contractual Union and compelling him to appear unassist-
ed at an interview during which his sworn statement was
taken by Respondent's security investigator concerning
Droste's involvement in and possible misconduct relating
to an altercation at a bar resulting in physical injuries to
Droste.
B. FactS3
At the time of the incident, Droste was a field meter
tester, included in the bargaining unit represented by the
Union under contract with Respondent. His working hours
extended from 8 a.m. until 4:30 p.m. About 9:30 p.m. on
April 2, Droste spoke by telephone to his immediate
supervisor, Bedard, and reported an incident substantially
as follows: 4 During working hours, he was "jumped on the
job" by a black man who demanded money, and he was
severely beaten when he refused. He also told Bedard he
was going that evening to a particular hospital. On April 3,
shortly before 8 a.m., Droste sought out Rodgers, union
chairman of the meter bargaining unit. He informed
Rodgers that he had fabricated the story of an assault
which he had reported to Bedard the night before. He
I All dates are in 1974.
2 The Union's charge was filed on April 25, and the complaint issued on
June 4
3 The pertinent facts are largely undisputed. The events described herein
are based essentially on the testimony of Supervisor Rudy Bedard, Union
Representative Patrick J. Rodgers , and Droste to the extent that he was not
materially contradicted.
4 Droste initiated a phone call to the company switchboard in an attempt
to reach Bedard; Bedard later called Droste at his home. A company report
signed by the switchboard operator indicates that notice of the incident was,
telephoned that evening to various officials in the legal, safety, medical,
security, and meter departments of Respondent. The switchboard operator
did not testify , and the source of the information in her report is not
elsewhere revealed in the record.
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
related that the actual incident occurred after, not during,
working hours on April 2. He had left his last assigned job
at 4 p.m. and entered a bar between 4:45 and 5 p.m. While
playing pool and steadily drinking alcoholic beverages, a
fight erupted about 7:30 p.m. over the payment of wagered
money, as a result of which he suffered certain physical
injuries. About 8 a.m., Bedard came by and briefly
conveyed his sympathy to Droste. Between 8 :15 and 8:30
a.m., while Droste was consulting with Rodgers and Norm
Michaels, the assistant unit chairman, he was instructed by
Bedard to go to the medical department (for examination)
and to the legal department (for an interview regarding the
April 2 incident). About 9 a.m., Bedard was called out of a
meeting to speak with Droste and Rodgers. Bedard was
then advised that the story which Droste has previously
reported was false, and he was told what was purported to
be the true facts of the incident at the bar occurring after
Droste's working - hours. Bedard indicated that Droste
would still have to go to the legal department and make a
statement . At this point, Droste requested representation
by Rodgers at the legal department. Bedard said he would
have to check on the matter. Rodgers approached his
supervisor, William Teschler, for leave without pay in
order to accompany Droste at the legal department. After
consulting with his own superior, Teschler denied Rodgers'
request. Upon his return, Bedard informed Droste and
Rodgers that the request for union representation would
not be allowed. Rodgers asked Bedard-"how bad do you
think it is?" Bedard said he had no idea. He testified that
he understood Rodgers to mean "what kind of disciplinary
action will result." Bedard gave Droste slips to report to
the medical and legal departments. About 10:15 a.m., after
he was examined by a company doctor, Droste was met
and escorted to the security department by James Morgan,
a workmen's compensation adjuster attached to the legal
department. Droste was then interrogated concurrently by
Morgan and Stuart Leach, a security investigator. Separate
statements prepared by Morgan and Leach were sworn to
and signed by Droste.5 Leach hand delivered a copy of his
document to Droste's department. Among other things, the
statement describes the purported circumstances of the
altercation at the bar occurring about 7:30 p.m.; the
injuries sustained by Droste; his telephonic report to
Bedard that he was assaulted, by a black man on the job;
and his confession to Bedard the next morning that his
previous story was false.6 Thereafter, Leach conducted a
5 The statements are substantially similar in content . Morgan testified
essentially that his area of responsibility is to investigate injuries allegedly
sustained in the course of an employee's work. Leach testified that his duties
include the investigation of illegal acts or misconduct by employees; he
conceded that the facts he uncovers might lead to discipline or clearance of
the employee.
6 If the incident were considered as having occurred during working
hours, as he initially reported, Droste would have obtained the advantages
of workmen's compensation and certain company-paid medical benefits
provided in the union contract. In other respects, his false report, if
accepted , could well have created a source of embarrassment for
Respondent with respect to its central city security program
7 Leach testified that he routinely prepares such a general report after a
full investigation, in which at tunes he includes his opinion as to whether the
conduct investigated was "illegal"; however, he did not state such an
opinion in his report on Droste.
8 Bill Lange, "the union relations man", Tom Bluhm of the legal
department; Bill Yelton, general superintendent, and R H Gabriel,
comprehensive investigation of the Droste incident, which
he submitted in the form of a written report to his
supervisor in the security department.7 On April 5, Bedard
participated in a conference with other company officials,8
concerning the "type of discipline to be given" Droste.
Inter aba, they passed around and discussed the sworn
statement of Droste taken by Leach. The decision made at
this meeting is reflected in a "Notice of Disciplinary
Action" received by Droste on April 8, which specifically
adverts to admissions of Droste made to the security
investigator, Leach. As described in the document attached
hereto as "Appendix A," Droste was suspended for 10
working days, demoted to his previous job classification of
single phase meter tester, which carries a lower wage rate
of two pay grades, and given- a warning of more severe
discipline and possible discharge in the event of "any
further misbehavior of any kind."9 Droste testified that he
did not agree with the disciplinary action and refused to
sign the notice because he contended that the facts stated
therein were untrue.
C. Conclusions
The present issue is controlled by existing Board
precedent to which I am bound. In Quality Manufacturing
Company,10 it was held that an employee "had reasonable
grounds to believe that disciplinary action might result
from the employer's investigation of her conduct, and that
the employee's discharge for insisting on union representa-
tion during the investigative interview violated Section
8(a)(l).11 Whether the employee has such reasonable
grounds to fear or believe that the interview will adversely
affect his continued employment or working conditions is
measured by objective standards under all the circum-
stances of the case.12 In Mobil Oil Corporation,13 the Board
stated:
. it is a serious violation of the employee's
individual right to engage in concerted activity by
seeking the assistance of his statutory representative if
the employer denies the employee's request and
compels the employee to appear unassisted at an
interview which may put his job security in jeopardy.
Such dilution of the employee's right to act collectively
to protect his job interests is, in our view, unwarranted
interference with his right to insist on concerted
protection, rather than individual self protection,
Bedard's superintendent It is apparent that voluntary or compulsory
attendance at this disciplinary meeting was not open to Droste, nor to any
union representative.
9 Although Leach testified that his full investigative report on the Droste
incident was confined to the security department and not revealed to higher
management, it appears that the "Notice of Disciplinary Action" contains
factual material which is absent from Droste's sworn statement delivered to
the meter department, and rather suggests that the officials at the
disciplinary meeting on April 5 had access to the "confidential" report by
Leach which had been set in motion by the interview of Droste.
10 195 NLRB 197 (1972) (Member Kennedy dissenting), enforcement
denied 481 F.2d 1018 (C.A. 4, 1973).
11 In the same circumstances involving "purely investigative interviews,"
the alleged violation of Sec. 8(a)(5) was not sustained Id at 198.
12 Id at 198, fn. 3.
13 196 NLRB 1052 (1972) (Member Kennedy dissenting), enforcement
denied 482 F 2d 1023 (C.A 7, 1973).
THE DETROIT EDISON COMPANY 63
against possible adverse employer action. The employ-
er may, if it wishes, advise the employee that it will not
proceed with the interview unless the employee is
willing to enter the interview unaccompanied by his
representative. The employee may then refrain from
participating in the interview, thereby protecting his
right to representation, but at the same time relinquish-
ing any benefit which might be derived from the
interview. The employer will then be free to act on the
basis of information obtained from other sources.
This quoted portion provides the rationale applicable to
the pertinent facts in the present case. In J. Weingarten,
Inc.,14 the Board adopted the Administrative Law Judge's
Decision, relying upon Mobil Oil and Quality Manufactur-
ing, supra, that Section 8(a)(1) was violated in circum-
stances substantially similar to those involved in the instant
case. There the employer's security agent refused the
employee's request for union representation during an
investigative interview concerning a possible act of
dishonesty by the employee. Administrative Law Judge
Nachman held that the affected employee-
could certainly reasonably conclude that action might
be taken by Respondent which would put her job
security in jeopardy. That neither [the security agent]
nor [the store manager] had authority to impose
discipline on [the employee], as Respondent argues, is
beside the point. To [the employee], the possibility of
discipline was just as real whether the discipline that
might be visited upon her was imposed immediately by
[the security agent] or [the store manager] or at some
future time by the President of the Company.
Similar arguments made in the present case that Morgan
and Leach, who conducted the interview, lacked authority
to discipline Droste are unavailmg.15 The discipline was of
course meted out at a higher management level based in
substantial part on the statement taken by Leach. Nor is it
material that the investigative interview of Droste had
already been arranged before he confessed to Respondent
the untruth of his original account that he had been
assaulted while working on his job. After disclosing the
falsity of his initial story, he was instructed by Supervisor
Bedard that he would have to make a statement to the legal
department. At this time, Droste reasonably requested the
presence and assistance of the bargaining unit chairman,
Rodgers, which was refused by Respondent to both Droste
and Rodgers. Also at this time, when the die was finally
cast for the interview of Droste, the question of discipline
was apparent to the unit chairman, Rodgers, and to
Supervisor Bedard, when Rodgers asked-"how bad do
you think it is?" Droste was aware he would be in trouble
with Respondent when he first sought out Rodgers for
assistance before making his confession to Bedard that he
14 202 NLRB 446 (1973) (Members Kennedy and Penello dissenting),
enforcement denied 485 F 2d 1135 (C.A. 5, 1973), cert. granted together
with International Ladies Garment Workers' Union v. Quality Manufacturing,
416 U.S 968 (1974)
15 Concerning its methods in treating the Droste incident, Respondent
must be regarded as having acted as an entity, and its liability for the
alleged violative conduct toward Droste cannot be avoided by its attempt to
diffuse the internal responsibility among the functions of various officials
had lied in his earlier report. The test is whether, at the
time Droste made this request for union representation, he
had reasonable grounds to fear that disciplinary action
might result from Respondent's investigation of his
conduct. In all the objective circumstances present, and
particularly in view of the nature of his fabricated first
report to Respondent, I find that Droste did indeed have
such reasonable grounds. Accordingly, I conclude that, by
denying the request of Droste for union representation in
the described circumstances, Respondent violated Section
8(a)(1) of the Act, as alleged.16
III. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. Upon the
foregoing findings of fact and the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By denying the request of Droste for union represen-
tation at an investigative interview ordered and thereafter
conducted by Respondent, under circumstances in which,
at the time of Droste's request, he had reasonable grounds
to fear that disciplinary action might result from such
interview, Respondent engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the above findings of fact, conclusions of law, and
the entire record in the case, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 17
Respondent, The Detroit Edison Company, Detroit,
Michigan, its officers, agents, successors, and assigns, shall:
1. Cease and desist from requiring any employee to
take part in an interview or meeting without union
representation, if such representation has been requested
by the employee and the employee has reasonable grounds
to believe that the matters to be discussed may result in his
being subject to disciplinary action.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
and departments in its large organization.
16 E.g., J. Weingarten, Inc, supra
17 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of-the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Post at its Warren Service Center in Detroit,
Michigan, copies of the attached notice marked "Appendix
B."18 Copies of said notice, to be furnished by the
Regional Director for Region 7, after being duly signed by
Respondent, shall be posted by it immediately upon receipt
thereof in conspicuous places, including all places where
notices to employees are customarily posted, and be
maintained for a period of 60 consecutive days. Reason-
able steps shall be taken to ensure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
Streets. Your presence in the bar on April 2, 1974, has been
corroborated by the owner of the bar. Your supervisor
followed your route slip and was unable to find you on the
afternoon in question.
Mr. Droste, by your unacceptable acts, you have
disparaged the Company's image to the public and your
falsehood regarding the alleged assault upon you by a
black man in the vicinity of Fullerton and 14th Streets
could have had extreme, adverse, repercussions on the
Company's central city security program for meter service
employes in Detroit.
CONCLUSION
is In the event that the Board's 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 Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX A
NOTICE OF DISCIPLINARY ACTION
THE DETROIT EDISON COMPANY
Department Meter
Notice of [].WARNING [X] SUSPENSION [] DEMO-
TION [ ] DISCHARGE Date April 8, 1974
Employee's flame Kenneth R. Droste
Occupation Field Meter Tester
Ident No. 40875 Employment Date: Company 11-3-69
Department 8-3-70
OFFENSE
Leaving area of work ' without permission . Drinking
alcoholic beverages and playing pool in a bar during
regular work period . Falsification of an injury report.
Disparaging the Company's image to the public by
improper conduct.
FACTS
Mr. Droste, on April 2, 1974, you left your work area
without permission and were observed in a bar located at
Plainview and Warren Streets, drinking alcoholic beverag-
es and playing pool with patrons of the bar. This occurred
during your regular work period. While at the bar you
became intoxicated and you engaged in fisticuffs with a
patron. As a result of the altercation you sustained physical
injury. You subsequently reported this injury to your
supervisor alleging that you sustained the injuries as a
result of being physically assaulted by a black man while
working near Fullerton and 14th Streets. While you were in
the bar you were attired in an Edison uniform which
readily identified you as being an Edison employe. On
April 3, 1974, you admitted to an investigator from the
Security Department that you had been in a bar, had
engaged in a physical altercation with a patron of the bar,
and had fabricated the alleged physical assault upon you
by a black man while working near Fullerton and 14th
These unacceptable acts by you cannot be tolerated.
Insofar as you were on trial to demonstrate your
qualifications and abilities in the job classification of Field
Meter Tester and have failed to become acceptable in said
classification because of your unacceptable acts as stated
above, you are being returned to your former job
classification of Single-phase Watthour Meter and Acces-
sories Tester. You will be suspended for a period of ten
(10) working days. Any further unsatisfactory behavior of
any kind may likely result in additional more severe
discipline and possibly even discharge.
Discharge Effective ----- 19-
Demotion Effective ----- --- 19-
Suspension Effective April 9, 1974 for 10 working days
Return to work April 23, 1974
Approved:
/s/ W. R. Yelton /s/ R. H. Gabriel
Department Head or Delegate Supervisor
Distribution of Copies:
Employe X Supervisor X Union Relations X
Employment X
Local Union Office X Union Representative X
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF TIDE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT require that any employee take part in
an interview or meeting without union representation,
if such representation has been requested by the
employee and if the employee has reasonable grounds
to believe that the matters to be discussed may result in
his being subject to disciplinary action.
TIDE DETROIT EDISON
COMPANY