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Aug. 22 — A labor arbitrator was “palpably wrong” in concluding that a telephone technician who was already on a performance improvement plan was not entitled to union representation at an investigatory meeting with a supervisor, the National Labor Relations Board held ( Verizon Calif., Inc. , 2016 BL 269638, 364 N.L.R.B. No. 79, 8/19/16 ).
The decision indicates that the NLRB will not hesitate to reject an arbitration decision if it finds the decision can’t be reconciled with the National Labor Relations Act.
The arbitrator held that Verizon California Inc. didn’t have to allow Bryan Rodriguez to bring a union representative to the meeting because Rodriguez had no reasonable concern the meeting might lead to discipline. Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Lauren McFerran wrote Aug. 19 that the arbitrator misconstrued the worker’s right to union representation and the decision was “repugnant” to the NLRA.
The board said even if Verizon didn’t expect to discipline Rodriguez, the telephone worker had a reasonable fear the company might conclude from the interview that he hadn’t made the progress his “PIP” required.
Rodriguez is a field technician who installs and repairs customer communications equipment. On June 2, 2010, Verizon placed him on a performance plan that required him to improve his productivity and report to his manager any “long-duration” job. The company advised Rodriguez his performance would be monitored daily.
On June 9, manager Brenda Cooper summoned Rodriguez to discuss the number of jobs he performed the previous day, as well as GPS data showing he made two stops before arriving at a scheduled long-duration call.
Rodriguez requested that a representative of his union, Communications Workers of America Local 9588, be present, but Cooper refused. The manager directed Rodriguez to return to work and later suspended him for one day for not answering her questions.
Under NLRB v. J. Weingarten Inc., 420 U.S. 251, 88 LRRM 2689 (1975), an employee has a statutory right upon request to have a union representative present during an investigatory interview if the employee reasonably believes the interview may result in disciplinary action.
Local 9588 filed an unfair labor practice charge, and the NLRB’s general counsel issued a complaint against Verizon, alleging the company unlawfully denied Rodriguez’s request and disciplined him for refusing to answer questions.
An administrative law judge dismissed the complaint and deferred to the decision of an arbitrator, who rejected a union grievance that Rodriguez was suspended without just cause.
Cooper testified in the arbitration that she only wanted to talk to Rodriguez about the stops he made, and the arbitrator said Rodriguez had no reasonable basis for believing he might be disciplined.
Pearce, Hirozawa and McFerran reversed the ALJ and said deferral to the arbitration decision was not appropriate.
“T]he focus of a proper Weingarten analysis is the objective evidence,” not the employer’s account of what it intended to ask an employee, the board members said. When Rodriguez asked for union representation, Cooper never assured him that her interview would not lead to discipline, the board observed.
Cooper’s conduct, plus the worker’s performance plan and company warnings that his performance had to improve, required a finding that Rodriguez reasonably feared the meeting might result in disciplinary action, the NLRB found.
The board remanded the case to the NLRB regional office for further action on the unfair labor practice charge.
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Text of the opinion is available at http://www.bloomberglaw.com/public/document/NLRB_Board_Decision_Verizon_California_Inc_364_NLRB_No_79_2016_BL.
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