On Application for Enforcement of an Order of The National Labor Relations Board.
Before Bauer, Circuit Judge, Fairchild, Senior Circuit Judge, and Brown, Senior District Judge.*fn*
Now before us is the application of the National Labor Relations Board for enforcement of its Order against the Respondent, the Illinois Bell Telephone Company. The Board found that the Company acted unlawfully in denying requests made by two of its employees for union representation during interviews conducted by the Company during an investigation into the billing of charge calls made from the Vandalia, Illinois Rehabilitation Center, a facility housing state prisoners.
Following an evidentiary hearing on the Complaint, the Administrative Law Judge found that the Company had violated Section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), by denying the rights of its employees, Hatfield and Wimberly, to be assisted by a union representative of their choice during investigative interviews, contrary to standards set out in N. L. R. B. v. J. Weingarten, Inc., 420 U.S. 251, 95 S. Ct. 959, 43 L. Ed. 2d 171 (1975).*fn1 Upon such finding the Administrative Law Judge ordered the Company to cease and desist from conducting such interviews in the absence of employee representatives when requested, ordered the posting of usual notices, and in addition ordered reinstatement, with back pay for the employee Cary Ann Hatfield.
The National Labor Relations Board adopted the findings of the Administrative Law Judge, including findings based upon credibility, ordered reinstatement with back pay for Hatfield, and in addition, ordered the Company to expunge from its files all records and references relating to the unlawful suspension and discharge of Ms. Hatfield. In this action, Illinois Bell has cross-petitioned to set aside the Board's Order, contending that its due process rights were violated when the Board found that it violated the National Labor Relations Act in a manner not alleged in the Complaint; that the Board erred in applying N. L. R. B. v. J. Weingarten, Inc., supra, to the situation in this case; that Section 10(c) of the Act prohibits the Board from ordering reinstatement of an employee discharged for cause; and that there is no substantial evidence to support the findings that Hatfield did not waive her right to union representation, and that Wimberly requested union representation.
Giving full effect to the credibility findings of the Administrative Law Judge, as adopted by the Board, the following pertinent facts give rise to this proceeding. Cary Ann Hatfield and Rebecca Wimberly were employed as long distance operators at the telephone exchange operated by the Company in Centralia, Illinois. Switchboard operators there are represented by the Communications Workers of America, Local 5008. In March, 1978, James Lawshe of the Company began to investigate information received from prison officials at the Vandalia Rehabilitation Center to the effect that operators at the Centralia exchange were "adjusting" charges on long distance calls made by prisoners at Vandalia. Inmates there were permitted to make "collect" long distance calls out of the facility through the Centralia exchange. On February 28, Rebecca Wimberly told Cary Hatfield that she had received a call from a Vandalia inmate who told her that a Bell Company investigator was coming from Chicago to talk to the Centralia operators and that Hatfield and another employee might lose their jobs. Hatfield then phoned her union steward, Jan Kirwan, who advised her not to go into any interview alone, and that any union member could serve as her representative. On March 1, Hatfield was interviewed by James Lawshe, a security agent for the Company, who informed her that he was investigating toll calls being placed by Vandalia prisoners through the Centralia exchange. Hatfield informed him she wanted a union representative to be present, he assented, and she went in search of one. The union steward Kirwan was not available because she worked another shift, but Hatfield requested that Cheryl Simonton, a former assistant union steward, be allowed to attend the interview. When Lawshe learned that Simonton was not a current union steward, he refused to allow her to represent Hatfield. The interview then proceeded without a union representative or member being present, and Hatfield ultimately signed a written statement admitting that she had reduced time charges on five or six calls for Vandalia prisoners and that she had made about five long distance calls to a friend in California free of charge.
The following day, March 2, Lawshe interviewed employee Wimberly. After Lawshe advised that he was investigating toll calls placed for Vandalia prisoners, Wimberly then asked, "Should I have someone in here with me, someone from the union?", Lawshe replied, "No, it is not necessary as long as you are honest with me." (Tr. 55). The interview then proceeded for approximately two hours, without representation for Wimberly. No disciplinary action was taken against Wimberly.
On March 7, the District Manager for Illinois Bell reviewed the Hatfield case and decided she should be discharged. On March 9th, Hatfield was called in and formally discharged by the Company.
Based on these facts, the Board found that the Company had violated Section 8(a)(1) by requiring employees Hatfield and Wimberly to participate in investigatory interviews without the presence of a union representative, despite the requests of the employees. The Order sought to be enforced requires the Company to cease and desist from engaging in these unfair labor practices or coercing its employees in the exercise of statutory rights. In addition, the Order requires the Company to offer Hatfield reinstatement, with back pay, and to expunge from its records all references to disciplinary action arising out of the events of the March 1 interview, including the statement Hatfield gave at this interview. The Order also requires the posting of appropriate notices.
We uphold the findings of Section 8(a)(1) violations in the case of both Hatfield and Wimberly, but remand to the Board for further consideration the remedy to be imposed in the case of Hatfield.
Initially, the Company contends that it was denied due process of law because the Complaint filed in the proceeding did not raise the issue of whether or not an employee was entitled to the presence of a fellow union member-as opposed to a union official-at an investigatory interview. A review of the transcript of the administrative hearing establishes, however, that the Company was in fact aware that this was an issue before any evidence was introduced at the hearing, because counsel for the Company raised the issue in his preliminary statement. Under such circumstance, the Company was not prejudiced and its constitutional right to due process was not violated.
The Company contends that Hatfield waived whatever rights she may have had to representation by agreeing to continue with the interview after it appeared that the union steward was not present on the premises. On this issue the Administrative Law Judge credited Hatfield's testimony over that of Lawshe, concluding that:
Under the facts in their record, when Miss Hatfield's selection of a representative was refused, she was not informed that she might terminate the interview or suspend it until a Union officer could be present. She was detained alone in the locus of managerial authority, peppered repeatedly with hostile questions, and threatened with criminal prosecution.... Such elements in this interview do not support a contention of waiver. They smack of oppression in the face of a studied reluctance to proceed. Accordingly, there is utterly no foundation for the Respondent's argument that Miss Hatfield freely and voluntarily waived her right to representation by continuing to answer the questions which Lawshe posed to her.
The Board accepted and adopted these findings. They are supported by substantial evidence and therefore the ...