Williams Pipeline Co.

National Labor Relations Board - Board Decisions

Sep 28, 1994

315 N.L.R.B. 1 (N.L.R.B. 1994)

1
315 NLRB No. 3
WILLIAMS PIPELINE CO.
1 No exceptions were filed to the judge’s finding that the Respond-
ent violated Sec. 8(a)(1) of the Act by denying an employee his
rights under NLRB v. J. Weingarten, 420 U.S. 251 (1975).
2 We shall modify par. 2(b) of the judge’s recommended Order to
conform to the Board’s standard language. We shall also grant the
General Counsel’s exception and shall substitute a new notice to de-
lete the last paragraph of the judge’s notice and conform the notice
to the judge’s recommended Order.
Williams Pipeline Company and Oil, Chemical and
Atomic Workers Union Local 5-348, AFL–CIO.
Case 17–CA–16778
September 28, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On July 1, 1994, Administrative Law Judge Elbert
D. Gadsden issued the attached decision. The General
Counsel filed a limited exception and a supporting
brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exception1 and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order as
modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Wil-
liams Pipeline Company, Kansas City, Kansas, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Substitute the following for paragraph 2(b).
‘‘(b) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT interfere with, restrain, or coerce you
in the excercise of the rights guaranteed in Section 7
of the Act by denying your request to be represented
by a union representative during an investigatory inter-
view in which you have reason to believe disciplinary
action will be taken against you.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WILLIAMS PIPELINE COMPANY
Richard Auslander, Esq., for the General Counsel.
Mark Solano, Esq. (Lester, Bryant, Solano, Pilgram &
Ganz), of Tulsa, Oklahoma, for the Respondent.
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge. On June
4, 1993, an unfair labor practice charge was filed by Oil,
Chemical and Atomic Workers Union Local 5-348, AFL–
CIO (the Union or the Charging Party), against Williams
Pipeline Company (the Respondent).
A complaint was issued on behalf of the General Counsel
by the Regional Director for Region 17, against the Respond-
ent on October 28, 1993. In essence, the complaint alleges
that on May 21, 1993, the Respondent denied an employee’s
request to be represented by the Union during an investiga-
tory interview for which the employee had reasonable cause
to believe would have resulted in disciplinary action against
him; that on or about May 21, 1993, Respondent conducted
the interview even though it had denied the employee’s re-
quest for union representation during the interview; and that
on or about May 21, 1993, Respondent suspended the em-
ployee for 3 days as a result of the information it obtained
from the employee during the interview; and that such con-
duct by the Respondent constituted interference with, re-
straint on, and coercion against the employees’ exercise of
rights guaranteed in Section 7 of the Act, in violation of Sec-
tion 8(a)(1) of the Act.
Respondent filed an answer to the complaint on October
29, 1993, admitting that it conducted an investigatory inter-
view but denied it has violated the Act, as alleged.
The hearing in the above matter was held before me on
December 13, 1993, in Mission, Kansas. Briefs have been re-
ceived from counsel for the General Counsel and counsel for
the Respondent, respectively, which have been carefully con-
sidered along with the entire record.
On the entire record in this case, including my observation
of the demeanor of the witnesses and my consideration of the
briefs, I make the following
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The facts set forth above are not in conflict in the record.
FINDINGS OF FACT
I. JURISDICTION
At all times material, Respondent has been a corporation
with a facility located at 401 East Donovan, Kansas City,
Kansas, where it has been engaged in the operation of an
interstate petroleum pipeline business.
During the previous 12 months ending May 31, 1993, Re-
spondent in the course and conduct of its business operations
of the petroleum pipeline, derived gross revenues in excess
of $50,000 from the transportation of petroleum in interstate
commerce, in the State of Kansas, the State of Oklahoma,
and other States.
The complaint alleges, the answer admits, and I find that
Respondent is now, and has been at all times material, an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
Oil, Chemical and Atomic Workers Union Local 5-348,
AFL–CIO (the Union), is now, and has been at all times ma-
terial, a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. Background Facts
Respondent is engaged in the transportation of petroleum
refined products, including gasoline, diesel, and jet fuels
through 7000 miles of underground pipeline in 11 States, to
various strategic locations where breakout tanks are located
and petroleum is stored, and later pumped or loaded and
transported in other directions.
Tim Elbert is the manager of the Kansas City complex,
which consists of a terminal and a station. The station side
is the receiving and pumping side where the flow of the
product is directed. The terminal side is a loading rack where
ground transportation comes and loads the product.
At all times material here, the following named individuals
held the position set forth opposite their respective names,
and are now, and have been at all times here, supervisors of
Respondent within the meaning of Section 2(11) of the Act
and agents of Respondent within the meaning of Section
2(13) of the Act:
Elbert Area Manager
Jerry Poplin Operations Supervisor
John Parrot Operations Supervisor
The most recent collective-bargaining agreement between
the Union and Respondent is effective for the period Feb-
ruary 1, 1993, through January 31, 1996, covering approxi-
mately 300 employees from Tulsa, Oklahoma, to Grand
Forks, North Dakota. The Kansas City facility here involved
consists of approximately 20 employees.
Procedural History of Case
Between the filing of the charge and letter of service on
June 4, 1993, and the filing of the complaint here on October
28, 1993, the evolutionary procedural posture of this case is
as follows:
In a letter to the parties dated July 9, 1993, the Regional
Director for Region 17 advised that based on the investiga-
tion of the charge, there was insufficient evidence and pro-
ceeding further was unwarranted.
On July 15, 1993, the Union filed a notice of appeal and
on July 26, 1993, the General Counsel’s Office of Appeals
acknowledged receipt of the appeal.
On September 29, 1993, the Office of Appeals sustained
the appeal and remanded the charge and Regional ruling to
the Regional Director, with the directive that there was a
need to develop a record before an administrative law judge.
Thereafter, the complaint in the instant matter was issued
October 28, 1993.1
B. Investigatory Interview of Employee Resulting in
Disciplinary Action Against the Employee
The simple issue presented for determination in this case
is as follows:
Whether the Respondent interfered with, restrained, and
coerced its employee, Jimmy Phoenix, by denying his re-
quest to be represented by a union agent in an investigatory
interview, which he had reasonable cause to believe would
result in disciplinary action being taken against him, in viola-
tion of Section 8(a)(1) of the Act.
The uncontroverted and credited testimony of record estab-
lished that Jimmy Phoenix, a lead operator, was in the em-
ploy of Respondent for approximately 20 years, including
during May 1993. Alfred (Al) Massey has been in Respond-
ent’s employ since August 1977, works as a lead operator,
and was the only union stewart at the Kansas City facility
(terminal and station) during May 1993.
During the midnight (12 to 8 a.m.) shift on May 19, 1993,
lead operator Jimmy Phoenix was at work. While performing
his duties, which included monitoring the contents of tanks
(709 and 744) containing petroleum products, one of the
gauges on tank 709 became stuck. Phoenix sent operator
Teasdale (a knowledgeable operator about gauges) to check
the gauge problem. Later, operator Teasdale informed Phoe-
nix that the gauge problem was corrected. Phoenix acknowl-
edged he was aware of a faulty gauge problem when his
work shift ended at 8:55 a.m., Wednesday, May 19, 1993.
On that afternoon (May 19) Area Manager Tim Elbert
called Phoenix at home and asked him to come to the office
to discuss an overfill of tank 709, on which Phoenix had
worked that morning. Phoenix told Elbert he could not come
to the office that afternoon but he would come in on Thurs-
day, May 20, because he had an engagement and that was
his day off. According to Phoenix, Elbert said, ‘‘Okay,’’ that
he had a meeting on Thursday but he should be back at
noon. Phoenix went to the office Thursday, May 20, at 11:45
a.m. and remained until 12:30 p.m. but neither Manager El-
bert nor any of the supervisors were there. Manager Elbert’s
meeting ended at 1 p.m. and when he returned he was in-
formed that Phoenix had been there around 11:30 or 11:45
a.m. Manager Elbert testified he tried calling Phoenix at
home that afternoon (May 20) but was unable to reach him.
Phoenix returned to the office Friday, May 21, at 1:35
p.m. as he had promised, and told Supervisor Jerry Poplin
he was there to discuss the matter involving the overflow of
tank 709. He asked Poplin was any disciplinary action going
3WILLIAMS PIPELINE CO.
to be taken against him. Poplin said he did not know yet,
that was the reason they were there for the meeting. Phoenix
told Poplin he ‘‘would like to have Al Massey here,’’ and
said let me go and call him. Poplin testified he suggested
that Phoenix call Massey. Phoenix went to the phone and
was unable to reach Massey so he returned to the office and
stated that he could not reach him. According to Phoenix,
Poplin said, ‘‘Bill Hayes is here,’’ but Poplin testified Phoe-
nix asked him if Hayes was there, and he said, ‘‘[Y]es,’’ and
Phoenix said, ‘‘Bill will do.’’ However, Phoenix said he
said, ‘‘I prefer to have Al Massey,’’ and Poplin said, ‘‘[B]ut
he’s not here’’ and Phoenix said, ‘‘I still prefer to have Al
Massey, but if I don’t have a choice, you know, if I don’t
have a choice, Bill can hear the conversation, what’s going
on.’’
Phoenix continued to testify as follows:
Q. Why did you say that?
A. Well, the reason—what I was thinking, if I walk
out and he—he’s my boss and I was down there for a
reason. If I walk out, I was thinking about that could
be insubordination. I didn’t want that to occur because
I have seen some [inaudible] in the past.
So I say, ‘‘I have no choice, you know, you can let
Bill hear our conversation.’’ I say—that’s what I said.
So Jerry Poplin said, ‘‘I’ll go get him.’’ So Jerry
went and got him and we proceeded to his office.
Q. Alright. Who was in the office when you went in
there?
A. There was Tim and—at this time a little nervous,
you know. Jerry and Bill Hayes sitting against the wall.
But I stated this question. After we sat down, I stated
this question, ‘‘Are any disciplinary action going to be
taken?’’
Tim said, ‘‘It all depends on two things, two things or two
words.’’
I said, ‘‘I still prefer to have Al,’’ and I told Bill Hayes
that I want you to hear my conversation.
Credibility of Phoenix and Poplin
According to the testimony of Manager Tim Elbert, as he
entered his office on May 21, he overheard Phoenix ask Su-
pervisor Poplin ‘‘was Bill Hayes there’’ and Poplin said,
‘‘[Y]es, Bill’s here,’’ and Phoenix said, ‘‘[H]e’ll do,’’ and
Poplin went and brought Hayes to the office. Phoenix denied
he ever said Bill Hayes ‘‘will do.’’
Supervisor Jerry Poplin corroborated Phoenix’s account
that while waiting for Manager Elbert to arrive, Phoenix
asked was disciplinary action going to be taken against him,
and he told Phoenix he did not know, the Company had to
hear his side of the story; that Phoenix then asked was Al
Massey around and he replied, ‘‘No Al’s not here, he’s not
on this shift.’’ Phoenix went out of the office to call Massey
and when he returned to the office, he asked Poplin ‘‘was
Bill Hayes there.’’ . . . ‘‘Bill Hayes will do,’’ so Poplin
went and got Hayes. Poplin said he told Hayes we need you,
Phoenix needs union representation and he picked (selected)
you.
Although Supervisor Poplin’s testimony tends to connote
that it was Phoenix who asked for lead operator Bill Hayes
after Poplin informed Phoenix that Union Steward Al
Massey was not there, the evidence is clear that Poplin heard
and understood Phoenix’s request for the presence of Union
Steward Massey to represent him at the investigatory inter-
view with Manager Elbert. It is equally clear from the record
that although Phoenix asked Poplin was Bill Hayes there,
after he had been informed by Poplin that Massey was not
there, that Phoenix’s inquiry of Hayes did not imply that he
desired Hayes to represent him or that he meant he was in-
terested in the presence of Hayes as his union representative.
In fact, the record clearly shows that Phoenix made it clear
to Poplin that he preferred Al Massey as his representative,
but if he did not have a choice in the matter he wanted the
presence of Hayes to hear the conversation. Phoenix’s ques-
tion as to whether he had a choice to have Steward Massey
represent him was reasonable, since Supervisor Poplin did
not at any time tell him he could arrange for another time
to have Massey represent him. Instead, Poplin simply and
undeniably said, ‘‘[B]ut Massey is not here,’’ as if the inter-
view had to proceed at that time without Massey. When
Phoenix asked was Bill Hayes there, Poplin said, ‘‘[Y]es.’’
Phoenix knew that Hayes was not a union steward and there
is nothing in the record to indicate that his inquiry of Hayes
was for the purpose of Hayes representing him. As the evi-
dence later shows, Phoenix’s initial inquiry of Hayes and his
later consent for the presence of Hayes at the interview, was
simply for Hayes to witness what was said during the inter-
view.
Based on the foregoing analysis of the record evidence,
reasons, as well as my observation of the demeanor of Phoe-
nix and Poplin, I was persuaded that it was Poplin, not Phoe-
nix, who said Hayes ‘‘will do,’’ suggesting or implying he
would do as a union representative for Phoenix at the inves-
tigatory interview. I therefore credit Phoenix’s account and
discredit Poplin’s account that it was Phoenix who said
Hayes ‘‘will do.’’
William Hayes, a lead operator, was employed by Re-
spondent about 26 years and currently works under the su-
pervision of Bob Miller. He is a member of the Union but
was not a steward in May 1993.
Hayes testified that on the afternoon of May 21, 1993, Su-
pervisor Jerry Poplin approached him and asked him to ac-
company him to the terminal office. He asked why, and Pop-
lin told him Jim Phoenix had come in to discuss the incident
involving tank 709 and they need somebody to be present,
or rather, Jim Phoenix needed somebody or something like
that. Hayes asked Poplin where was Steward Al Massey and
why they did not get him. Poplin said Massey ‘‘was not
available, you will do,’’ and further stated, ‘‘you’re a stew-
ard, aren’t you?’’ Hayes said he replied no, but I had been
a steward in the past (prior to 1977); and Poplin said Phoe-
nix said you will do. Poplin was pretty insistent and asked
him to come with him and just sit in there and be a witness.
Hayes accompanied Poplin to Superintendent Elbert’s of-
fice where Phoenix was sitting in the other room. Hayes
asked Elbert about Massey, stating Massey should be
present, not him. Thereafter, they went into the other room
and he heard Phoenix ask Elbert on two occasions would he
be disciplined. There was no answer, except Elbert said that
is why we are here—that is the purpose of the meeting.
It is particularly noted that Manager Elbert corroborated
Supervisor Poplin’s testimony that he overheard Phoenix ask
Supervisor Poplin was Bill Hayes there, and when Poplin
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
said, ‘‘[Y]es,’’ Phoenix said, ‘‘[H]e’ll do.’’ After Poplin got
Hayes, Elbert acknowledged Phoenix first asked for Steward
Massey, and when he informed Phoenix that Massey was not
there, Phoenix asked was Bill Hayes there—and Elbert said,
‘‘[Y]es,’’ and Phoenix said, ‘‘[H]e will do.’’ However, it is
noted that Elbert tried to embellish Poplin’s account by add-
ing, that Poplin told Hayes we need you, ‘‘Phoenix needs
union representation and he picked you.’’ Even Poplin did
not testify that he told Hayes ‘‘Phoenix needs union rep-
resentation and he [Phoenix] picked you [Hayes].’’
More significantly, Hayes testified that when he told Pop-
lin he was not a union steward, Poplin said, ‘‘[Y]ou will
do;’’ that Poplin was pretty insistent and asked him to just
sit in on the interview.
Based on the foregoing analysis of the record testimony of
Manager Tim Elbert and employee Bill Hayes, as well as the
demeanor of all witnesses, I credit Bill Hayes’ account and
discredit Manager Elbert’s account because Elbert not only
tried to corroborate the discredited account of Supervisor
Poplin, but also attempted to expand upon it by stating that
Poplin told Hayes they ‘‘needed him, he would do . . . that
Phoenix need union representation and he picked you’’
(Hayes). Again, it is particularly noted that it was Poplin,
and not Elbert who told Bill Hayes, he would do, implying
or suggesting he would do as a union representative for
Phoenix, in the face of Phoenix’s explicit request for Steward
Massey to represent him at the investigatory interview.
It is clear from the record, that it was only in the absence
or Steward Massey, that Phoenix wanted Bill Hayes to sit in
as a witness. At no time did I receive the understanding from
this record that Phoenix wanted the presence of Hayes for
any purpose other than to witness what would be said in the
interview.
Although Supervisor Poplin testified he never suggested
that Phoenix should use Bill Hayes as his representative, and
he never verbally denied Phoenix’s request for Massey to
represent him, I nevertheless find on the credited evidence
that Poplin and Elbert both suggested and implied that Bill
Hayes could and should be his representative. I discredit
Poplin’s inconsistent denial that he did not hear Phoenix re-
quest or state he preferred the presence of Steward Massey
at the interview.
Consequently, I further find on the credited testimony, that
Phoenix never consented to or substituted Bill Hayes for the
presence of Massey, as his union representative at the inves-
tigatory interview with Manager Elbert. This conclusion is
especially true since Respondent (Elbert and Poplin) gave
Phoenix the well-founded impression that he had to go for-
ward with the interview at that time, without the presence of
Union Steward Massey as his representative.
The Investigatory Interview
During the meeting on May 21, Manager Elbert asked
Phoenix what happened. Phoenix said he read or checked the
gauge at 2, 4, and 6 o’clock, and noted it was the same. He
told operator Teasdale he needed that tank line checked, the
gauge on 709, and Teasdale said okay. After Teasdale
checked the gauge, Phoenix said he noticed it went down be-
tween 6:35 and 7 a.m., and Teasdale said it was ‘‘okay’’—
‘‘it’s working Jim.’’ Phoenix said the tank alarm did not go
off and he depended on the man with the hand line (Teas-
dale) and the alarm. Thereafter, he said he went on perform-
ing his other duties until the shift ended. At the conclusion
of the investigatory interview concerning the tank overfill,
Manager Elbert suspended Phoenix for 3 days, pending the
results of the investigation because he said Elbert was on the
72-hour timeclock limitation.
Conversations and Meeting Between Manager Tim
Elbert and Steward Alfred Massey
Alfred Massey, lead operator, has been in Respondent’s
employ since 1977 and works under the supervision of Bob
Miller. Massey testified he worked at night and got off at
7:45 a.m., May 21, 1993. That afternoon he received a call
from lead operator, Jim Phoenix, who told him he was ap-
proached by Manager Elbert and asked to meet with him
about an incident in which he was involved. Phoenix told
him he had asked Manager Elbert would there be any dis-
cipline resulting from the meeting and Elbert told him there
could be, depending on what Phoenix had to say. Phoenix
said he asked Elbert could Al Massey be present as his union
representative and Elbert told him he believed Massey was
unavailable, but Phoenix can call Massey if he desired to do
so. Phoenix told him he tried unsuccessfully to contact
Massey by telephone. Phoenix said he nonetheless attended
the investigatory interview. Present at the interview were
Manager Tim Elbert, Supervisor Jerry Poplin, and lead oper-
ator Bill Hayes, who sat in on the interview. Massey said he
told Phoenix he would look into the matter and get back to
him.
On the next morning, May 23, 1993, Massey visited the
office of Manager Tim Elbert and asked him had he sched-
uled a meeting with Jim Phoenix. Elbert said, ‘‘[Y]es.’’
Massey asked Elbert did he tell Phoenix there would be dis-
ciplinary action at the meeting. Elbert said he told Phoenix
there could be, disciplinary action depending on what Phoe-
nix had to say. Massey asked Elbert if he thought Massey
should have been there and Elbert said he did not know.
Massey told Elbert that by his calling Bill Hayes to the meet-
ing Elbert was trying to use Hayes as a union steward in vio-
lation of the labor law. Near the end of the meeting, Massey
said he asked Elbert to revoke Phoenix’s suspension and
clear his record. Elbert said he could not make that decision
but he would get back to him or leave a message for him.
When Massey contacted the Company the next day (May
24) about Phoenix’s suspension, he was informed that the
Company was treating the reason for the suspension and the
question about whether Phoenix’s Weingarten right had been
violated as different issues. Massey told the Company (El-
bert) it could not select the steward for the Union because
Massey was elected steward by the Union.
Analysis and Conclusions
In NLRB v. J. Weingarten, 420 U.S. 251 (1975), the Su-
preme Court held that an employee who is being subjected
to an investigatory interview has the right to request the
union representative. When the employee makes such a re-
quest, the employer must either grant the request, or advise
the employee it (employer) will not proceed with the inter-
view unless the employee is willing to go on with the inter-
view without a union representative.
In applying the Weingarten ruling with respect to the un-
availability of a requested union representative by an em-
5WILLIAMS PIPELINE CO.
ployee, the Board has held that although Weingarten does
not indicate that an Employer must postpone an investigatory
interview with its employees because a particular union rep-
resentative is unavailable for personal or other reasons, when
another union representative is available and could have been
requested by the employee. Coca-Cola Bottling Co. of Los
Angeles, 227 NLRB 1276 (1977).
In the instant case however, Steward Al Massey was the
only union representative at Respondent’s facility, and he
was unavailable and could not be reached by telephone on
May 21, 1993, the day Respondent scheduled the interview.
Since Massey was the only steward at Respondent’s Kansas
City facility and the only steward whose presence Phoenix
could have requested, the facts in Coca-Cola Bottling, supra,
are distinguishable from and not applicable to the facts in the
instant case. Safeway Stores, 303 NLRB, 989, 995–996
(1991).
In fact, Phoenix’s request for Union Steward Massey was
clearly and undeniably made to Manager Tim Elbert and Su-
pervisor Jerry Poplin. Supervisor Poplin and Manager Elbert
informed employee Phoenix that Steward Al Massey was not
there. After Phoenix was informed that Steward Massey was
not there, he then asked was Bill Hayes (employee union
member) there.
The record evidence is uncontroverted that in response to
Phoenix’s question about discipline on May 21, both Super-
visor Poplin and Manager Elbert told Phoenix, whether he
would be subjected to disciplinary action because of the
overflow of tank 709, depended on what was learned during
the scheduled investigatory interview that day. Thus, Phoenix
had ample reason to believe he could or would be subjected
to disciplinary action because of the above answer of the Re-
spondent and the overfill of the tank on which he last
worked.
Although Phoenix had requested and informed Supervisor
Poplin and Manager Elbert he wanted and preferred the pres-
ence of Steward Massey at the investigatory interview on
May 21, the evidence of record fails to show that either Pop-
lin or Elbert ever advised Phoenix that the Company would
not proceed with the interview unless Phoenix was willing to
go forward with the interview without Union Representative
Massey. Weingarten, supra.
It is true, as Respondent argues, that Respondent did not
ever verbally deny Phoenix’s request for union representation
at the investigatory interview. However, the evidence never-
theless fails to demonstrate that Respondent (Elbert or Pop-
lin) ever affirmatively granted (verbally or by action) or ad-
vised (expressly) Phoenix that the company would not pro-
ceed with the interview unless Phoenix was willing to go for-
ward with the interview unrepresented, as Weingarten re-
quires an Employer to do. Weingarten, supra.
Instead of explicitly (expressly or actually) granting Phoe-
nix’s request to be represented by Steward Massey, or ex-
pressly advising him that the Company would not proceed
with the interview unless Phoenix was willing to proceed un-
represented by Steward Massey, Manager Elbert and Super-
visor Poplin merely quickly agreed to Phoenix’s unwilling
request for the presence of fellow employee Bill Hayes as a
witness to the interview.
At the hearing in this case, both Elbert and Poplin tried
to give the impression that Phoenix was willing to substitute
Hayes for Massey as his representative. However, the cred-
ited evidence shows that Phoenix unwillingly elected to go
forward with Hayes as a witness because he did not feel he
had the freedom not to proceed without Steward Massey.
Phoenix’s feeling of being constrained to go forward with
the interview unrepresented by Massey is obviously, the very
reason why Weingarten requires the employer to advise the
requesting employee that the employer will not proceed with
the interview unless the employee is willing to proceed un-
represented by the union. Since neither Elbert nor Poplin so
advised Phoenix, it is reasonable and understandable why
Phoenix felt constrained (unwilling) to proceed without
Steward Massey, who was unavailable at the time of the
interview.
Additionally, an employee’s ‘‘right to representation’’ in
an investigatory interview is an employees’ right to a rep-
resentative who is an agent of the labor organization—which
is the exclusive representative of the employees. Sears, Roe-
buck & Co., 274 NLRB 230 (1985); T.N.T. Red Star Ex-
press, 299 NLRB 894, 898 fn. 12 (1990); NLRB v. J.
Weingarten, supra. In the instant case, it is without dispute
that employee Bill Hayes was not a steward or an agent of
the Union in May 1993, when he sat in on Phoenix’s inves-
tigatory interview as a witness. By Phoenix’s consenting to
Hayes’ presence in the interview did not transform Hayes
into a union agent or representative. Nor did Hayes’ presence
constitute a waiver by Phoenix of his right to union represen-
tation at the interview. See Southwestern Bell Telephone Co.,
227 NLRB 1223 (1977). Also in Super Valu Stores, 236
NLRB 1581, 1591 (1978), the administrative law judge with
Board approval, described an employer’s objections, in a
Weingarten situation, when a union representative is not
available by stating:
In this circumstance, the employer had the choice of
giving the employee time or a postponement to obtain
the representation or as the Supreme Court pointed out
in Weingarten . . . of advis[ing] the employee that it
will not proceed with the interview unless the employee
is willing to enter the interview unaccompanied by his
representative.
With respect to an employee going forward with the inter-
view without the requested union representation, the adminis-
trative law judge further stated:
The fact that [the employee] stayed, and answered the
questions put to him, did not make his participation
voluntary or constitute a waiver of his right to union
representation. It should not be a requisite of union rep-
resentation that the lone employee further antagonize
the employer and jeopardize his job by walking out of
the meeting or refusing to answer questions. [Id.]
At the hearing here, Phoenix credibly and convincingly ex-
plained why he did not walk out of the meeting because
Steward Massey was unavailable. The record shows that Re-
spondent did nothing to make him feel welcome to walk out
or to request a postponement of the interview until Steward
Massey was available. Instead Respondent suggested and ac-
quiesced in Hayes being present at the interview, as though
Hayes was representing Phoenix. Under such circumstances
I do not find that because Phoenix felt constrained to go for-
ward with the interview without Steward Massey, meant that
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
3 If 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
he voluntarily went forward, or that his going forward con-
stituted a waiver of his right to union representation. Super
Valu Stores, supra.
Consequently, based on the foregoing findings and cited
legal authority, I conclude and find that Phoenix went for-
ward with the investigatory interview without the presence of
Steward Massey, and without Respondent having advised
him that the Company would not proceed with the interview
unless Phoenix was willing to go forward unrepresented by
the Union. I further find that such conduct by the Respond-
ent constituted an interference with, a restraint on, and coer-
cion against the exercise of employee’s Section 7 rights, in
violation of Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE
ON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in close connection with its operations as
described in section I, above, have a close, intimate, and sub-
stantial effect on trade, traffic, and commerce among the sev-
eral 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 denied an employee’s re-
quest to be represented by a union representative during an
investigatory interview, in which the employee had reason to
believe disciplinary action would be, and in fact was taken
against him, and that by so denying, Respondent has engaged
in an unfair labor practice within the meaning of Section
8(a)(1) of the Act, I order that Respondent cease and desist
from engaging in such unlawful conduct, and that it take cer-
tain affirmative action to effectuate the purposes of the Act.
Because of the character of the unfair labor practice here
found, the recommended Order will provide that Respondent
cease and desist from engaging in any like or related manner
interfering with, restraining, and coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act.
NLRB v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir.
1941).
On the basis of the above findings of fact, and on the en-
tire record in this case, I make the following
CONCLUSIONS OF LAW
1. Williams Pipeline Company, the Respondent, is and has
been at all times material, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. By denying its employee’s request to be represented by
a union representative during an investigatory interview, in
which the employee had reason to believe disciplinary would
be, and was in fact, taken against him, Respondent has inter-
fered with, restrained, and coerced its employees in the exer-
cise of their rights protected by Section 7, in violation of
Section 8(a)(1) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Williams Pipeline Company, Kansas
City, Kansas, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Denying employees’ request to be represented by a
union representative during an investigatory interview, in
which employees have reason to believe disciplinary action
would be, or is in fact, taken against them, thereby interfer-
ing with, restraining, and coercing them in the exercise of
their right guaranteed them by Section 7 of the Act, in viola-
tion of Section 8(a)(1) of the Act.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at Respondent’s facility at 401 East Donovan,
Kansas City, Kansas 66115, copies of the attached notice
marked ‘‘Appendix.’’3 Copies of the notice, on forms pro-
vided by the Regional Director for Region 17, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are customar-
ily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.