Case Name: NLRB V. WEINGARTEN, INC., 420 U.S. 251 

NATIONAL LABOR RELATIONS BOARD V. J. WEINGARTEN, INC.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

NO. 73 - 1363.  ARGUED NOVEMBER 18, 1974--DECIDED FEBRUARY

19, 1975; 485 F.2D 1135, REVERSED AND REMANDED. 

DURING THE COURSE OF AN INVESTIGATIVE INTERVIEW AT WHICH AN

EMPLOYEE OF RESPONDENT WAS BEING INTERROGATED BY A REPRESENTATIVE

OF RESPONDENT EMPLOYER ABOUT REPORTED THEFTS AT RESPONDENT'S

STORE, THE EMPLOYEE ASKED FOR BUT WAS DENIED THE PRESENCE AT THE

INTERVIEW OF HER UNION REPRESENTATIVE.  THE UNION THEREUPON FILED

AN UNFAIR LABOR PRACTICE CHARGE WITH THE NATIONAL LABOR RELATIONS

BOARD (NLRB).  IN ACCORDANCE WITH ITS CONSTRUCTION IN MOBIL OIL

CORP., 196 N.L.R.B. 1052, ENFORCEMENT DENIED, 482 F.2D 842, AND

QUALITY MFG. CO., 195 N.L.R.B. 197, ENFORCEMENT DENIED, 481 F.2D

1018, REV'D, POST, P. 276, THE NLRB HELD THAT THE EMPLOYER HAD

COMMITED AN UNFAIR LABOR PRACTICE AND ISSUED A CEASE-AND-DESIST

ORDER, WHICH, HOWEVER, THE COURT OF APPEALS SUBSEQUENTLY REFUSED

TO ENFORCE, CONCLUDING THAT AN EMPLOYEE HAS NO "NEED" FOR UNION

ASSISTANCE AT AN INVESTIGATIVE INTERVIEW.  [ELD:  THE EMPLOYER

VIOLATED 8(A)(1) OF THE NATIONAL LABOR RELATIONS ACT BECAUSE IT

INTERFERED WITH, RESTRAINED, AND COERCED THE INDIVIDUAL RIGHT OF

AN EMPLOYEE, PROTECTED BY 7, "TO ENGAGE IN . . . CONCERTED

ACTIVITIES FOR . . . MUTUAL AID OR PROTECTION . . .," WHEN IT

DENIED THE EMPLOYEE'S REQUEST FOR THE PRESENCE OF HER UNION

REPRESENTATIVE AT THE INVESTIGATIVE INTERVIEW THAT THE EMPLOYEE

REASONABLY BELIEVED WOULD RESULT IN DISCIPLINARY ACTION.  PP. 256

- 268. 

(A) THE NLRB'S HOLDING IS A PERMISSIBLE CONSTRUCTION OF

"CONCERTED ACTIVITIES FOR . . . MUTUAL AID OR PROTECTION" BY THE

AGENCY CHARGED BY CONGRESS WITH ENFORCEMENT OF THE ACT.  PP. 260

- 264. 

(B) THE NLRB HAS THE "SPECIAL FUNCTION OF APPLYING THE GENERAL

PROVISIONS OF THE ACT TO THE COMPLEXITIES OF INDUSTRIAL LIFE,"

NLRB V. ERIE RESISTOR CORP., 373 U.S. 221, 236, AND ITS SPECIAL

COMPETENCE IN THIS FIELD IS THE JUSTIFICATION FOR THE DEFERENCE

ACCORDED ITS DETERMINATION.  PP. 264 - 267. 

BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

DOUGLAS, WHITE, MARSHALL, BLACKMUN, AND REHNQUIST, JJ., JOINED. 

BURGER, C. J., FILED A DISSENTING OPINION, POST, P. 268.  POWELL,

J., FILED A DISSENTING OPINION, IN WHICH STEWART, J., JOINED,

POST, P. 269. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE NATIONAL LABOR RELATIONS BOARD HELD IN THIS CASE THAT RESPONDENT

EMPLOYER'S DENIAL OF AN EMPLOYEE'S REQUEST THAT HER UNION

REPRESENTATIVE BE PRESENT AT AN INVESTIGATORY INTERVIEW WHICH THE

EMPLOYEE REASONABLY BELIEVED MIGHT RESULT IN DISCIPLINARY ACTION

CONSTITUTED AN UNFAIR LABOR PRACTICE IN VIOLATION OF 8(A)(1) OF THE

NATIONAL LABOR RELATIONS ACT, /1/ AS AMENDED, 61 STAT. 140, BECAUSE IT

INTERFERED WITH, RESTRAINED, AND COERCED THE INDIVIDUAL RIGHT OF THE

EMPLOYEE, PROTECTED BY 7 OF THE ACT, "TO ENGAGE IN . . . CONCERTED

ACTIVITIES FOR . . . MUTUAL AID OR PROTECTION . . .."  /2/ 202 N.L.R.B.

446 (1973).  THE COURT OF APPEALS FOR THE FIFTH CIRCUIT HELD THAT THIS

WAS AN IMPERMISSIBLE CONSTRUCTION OF 7 AND REFUSED TO ENFORCE THE

BOARD'S ORDER THAT DIRECTED RESPONDENT TO CEASE AND DESIST FROM

REQUIRING ANY EMPLOYEE TO TAKE PART IN AN INVESTIGATORY INTERVIEW

WITHOUT UNION REPRESENTATION IF THE EMPLOYEE REQUESTS REPRESENTATION

AND REASONABLY FEARS DISCIPLINARY ACTION.  485 F.2D 1135 (1973).  /3/

WE GRANTED CERTIORARI AND SET THE CASE FOR ORAL ARGUMENT WITH NO. 73 -

765, GARMENT WORKERS V. QUALITY MFG. CO., POST, P. 276, 416 U.S. 969

(1974).  WE REVERSE. 

I 

RESPONDENT OPERATES A CHAIN OF SOME 100 RETAIL STORES WITH LUNCH

COUNTERS AT SOME, AND SO-CALLED LOBBY FOOD OPERATIONS AT OTHERS,

DISPENSING FOOD TO TAKE OUT OR EAT ON THE PREMISES.  RESPONDENT'S SALES

PERSONNEL ARE REPRESENTED FOR COLLECTIVE-BARGAINING PURPOSES BY RETAIL

CLERKS UNION, LOCAL 455.  LEURA COLLINS, ONE OF THE SALES PERSONNEL,

WORKED AT THE LUNCH COUNTER AT STORE NO. 2 FROM 1961 TO 1970 WHEN SHE

WAS TRANSFERRED TO THE LOBBY OPERATION AT STORE NO. 98.  RESPONDENT

MAINTAINS A COMPANYWIDE SECURITY DEPARTMENT STAFFED BY "LOSS PREVENTION

SPECIALISTS" WHO WORK UNDERCOVER IN ALL STORES TO GUARD AGAINST LOSS

FROM SHOPLIFTING AND EMPLOYEE DISHONESTY.  IN JUNE 1972, "SPECIALIST"

HARDY, WITHOUT THE KNOWLEDGE OF THE STORE MANAGER, SPENT TWO DAYS

OBSERVING THE LOBBY OPERATION AT STORE NO. 98 INVESTIGATING A REPORT

THAT COLLINS WAS TAKING MONEY FROM A CASH REGISTER.  WHEN HARDY'S

SURVEILLANCE OF COLLINS AT WORK TURNED UP NO EVIDENCE TO SUPPORT THE

REPORT, HARDY DISCLOSED HIS PRESENCE TO THE STORE MANAGER AND REPORTED

THAT HE COULD FIND NOTHING WRONG.  THE STORE MANAGER THEN TOLD HIM THAT

A FELLOW LOBBY EMPLOYEE OF COLLINS HAD JUST REPORTED THAT COLLINS HAD

PURCHASED A BOX OF CHICKEN THAT SOLD FOR $2.98, BUT HAD PLACED ONLY $1

IN THE CASH REGISTER.  COLLINS WAS SUMMONED TO AN INTERVIEW WITH

SPECIALIST HARDY AND THE STORE MANAGER, AND HARDY QUESTIONED HER.  THE

BOARD FOUND THAT SEVERAL TIMES DURING THE QUESTIONING SHE ASKED THE

STORE MANAGER TO CALL THE UNION SHOP STEWARD OR SOME OTHER UNION

REPRESENTATIVE TO THE INTERVIEW, AND THAT HER REQUESTS WERE DENIED. 

COLLINS ADMITTED THAT SHE HAD PURCHASED SOME CHICKEN, A LOAF OF BREAD,

AND SOME CAKE WHICH SHE SAID SHE PAID FOR AND DONATED TO HER CHURCH FOR

A CHURCH DINNER.  SHE EXPLAINED THAT SHE PURCHASED FOUR PIECES OF

CHICKEN FOR WHICH THE PRICE WAS $1, BUT THAT BECAUSE THE LOBBY

DEPARTMENT WAS OUT OF THE SMALL-SIZE BOXES IN WHICH SUCH PURCHASES WERE

USUALLY PACKAGED SHE PUT THE CHICKEN INTO THE LARGER BOX NORMALLY USED

FOR PACKAGING LARGER QUANTITIES.  SPECIALIST HARDY LEFT THE INTERVIEW

TO CHECK COLLINS' EXPLANATION WITH THE FELLOW EMPLOYEE WHO HAD REPORTED

COLLINS.  THIS EMPLOYEE CONFIRMED THAT THE LOBBY DEPARTMENT HAD RUN OUT

OF SMALL BOXES AND ALSO SAID THAT SHE DID NOT KNOW HOW MANY PIECES OF

CHICKEN COLLINS HAD PUT IN THE LARGER BOX.  SPECIALIST HARDY RETURNED

TO THE INTERVIEW, TOLD COLLINS THAT HER EXPLANATION HAD CHECKED OUT,

THAT HE WAS SORRY IF HE HAD INCONVENIENCED HER, AND THAT THE MATTER WAS

CLOSED. 

COLLINS THEREUPON BURST INTO TEARS AND BLURTED OUT THAT THE ONLY

THING SHE HAD EVER GOTTEN FROM THE STORE WITHOUT PAYING FOR IT WAS HER

FREE LUNCH.  THIS REVELATION SURPRISED THE STORE MANAGER AND HARDY

BECAUSE, ALTHOUGH FREE LUNCHES HAD BEEN PROVIDED AT STORE NO. 2 WHEN

COLLINS WORKED AT THE LUNCH COUNTER THERE, COMPANY POLICY WAS NOT TO

PROVIDE FREE LUNCHES AT STORES OPERATING LOBBY DEPARTMENTS.  IN

CONSEQUENCE, THE STORE MANAGER AND SPECIALIST HARDY CLOSELY

INTERROGATED COLLINS ABOUT VIOLATIONS OF THE POLICY IN THE LOBBY

DEPARTMENT AT STORE NO. 98.  COLLINS AGAIN ASKED THAT A SHOP STEWARD BE

CALLED TO THE INTERVIEW, BUT THE STORE MANAGER DENIED HER REQUEST. 

BASED ON HER ANSWERS TO HIS QUESTIONS, SPECIALIST HARDY PREPARED A

WRITTEN STATEMENT WHICH INCLUDED A COMPUTATION THAT COLLINS OWED THE

STORE APPROXIMATELY $160 FOR LUNCHES.  COLLINS REFUSED TO SIGN THE

STATEMENT.  THE BOARD FOUND THAT COLLINS, AS WELL AS MOST, IF NOT ALL,

EMPLOYEES IN THE LOBBY DEPARTMENT OF STORE NO. 98, INCLUDING THE

MANAGER OF THAT DEPARTMENT, TOOK LUNCH FROM THE LOBBY WITHOUT PAYING

FOR IT, APPARENTLY BECAUSE NO CONTRARY POLICY WAS EVER MADE KNOWN TO

THEM.  INDEED, WHEN COMPANY HEADQUARTERS ADVISED SPECIALIST HARDY BY

TELEPHONE DURING THE INTERVIEW THAT HEADQUARTERS ITSELF WAS UNCERTAIN

WHETHER THE POLICY AGAINST PROVIDING FREE LUNCHES AT LOBBY DEPARTMENTS

WAS IN EFFECT AT STORE NO. 98, HE TERMINATED HIS INTERROGATION OF

COLLINS.  THE STORE MANAGER ASKED COLLINS NOT TO DISCUSS THE MATTER

WITH ANYONE BECAUSE HE CONSIDERED IT A PRIVATE MATTER BETWEEN HER AND

THE COMPANY, OF NO CONCERN TO OTHER.  COLLINS, HOEVER, REPORTED THE

DETAILS OF THE INTERVIEW FULLY TO HER SHOP STEWARD AND OTHER UNION

REPRESENTATIVES, AND THIS UNFAIR LABOR PRACTICE PROCEEDING RESULTED. 

/4/

II 

THE BOARD'S CONSTRUCTION THAT 7 CREATES A STATUTORY RIGHT IN AN

EMPLOYEE TO REFUSE TO SUBMIT WITHOUT UNION REPRESENTATION TO AN

INTERVIEW WHICH HE REASONABLY FEARS MAY RESULT IN HIS DISCIPLINE WAS

ANNOUNCED IN ITS DECISION AND ORDER OF JANUARY 28, 1972, IN QUALITY

MFG. CO., 195 N.L.R.B. 197, CONSIDERED IN GARMENT WORKERS V. QUALITY

MFG. CO., POST, P. 276.  IN ITS OPINIONS IN THAT CASE AND IN MOBIL OIL

COPR., 196 N.L.R.B. 1052, DECIDED MAY 12, 1972, THREE MONTHS LATER, THE

BOARD SHAPED THE CONTOURS AND LIMITS OF THE STATUTORY RIGHT. 

FIRST, THE RIGHT INHERES IN 7'S GUARANTEE OF THE RIGHT OF EMPLOYEES

TO ACT IN CONCERT FOR MUTUAL AID AND PROTECTION.  IN MOBIL OIL, THE

BOARD STATED: 

"AN EMPLOYEE'S RIGHT TO UNION REPRESENTATION UPON REQUEST IS

BASED ON SECTION 7 OF THE ACT WHICH GUARANTEES THE RIGHT OF

EMPLOYEES TO ACT IN CONCERT FOR 'MUTUAL AID AND PROTECTION.'  THE

DENIAL OF THIS RIGHT HAS A REASONABLE TENDENCY TO INTERFERE WITH,

RESTRAIN, AND COERCE EMPLOYEES IN VIOLATION OF SECTION 8(A)(1) OF

THE ACT.  THUS, 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 A DILUTION OF THE EMPLOYEE'S RIGHT TO T

COLLECTIVELY TO PROTECT HIS JOB INTERESTS IS, IN OUR VIEW,

UNWARRANTED INTERFERENCE WITH HIS RIGHT TO INSIST ON CONCERTED

PROTECTION, RATHER THAN THE INDIVIDUAL SELF-PROTECTION, AGAINST

POSSIBLE ADVERSE EMPLOYER ACTION."  IBID. 

SECOND, THE RIGHT ARISES ONLY IN SITUATIONS WHERE THE EMPLOYEE

REQUESTS REPRESENTATION.  IN OTHER WORDS, THE EMPLOYEE MAY FORGO HIS

GUARANTEED RIGHT AND, IF HE PREFERS, PARTICIPATE IN AN INTERVIEW

UNACCOMPANIED BY HIS UNION REPRESENTATIVE. 

THIRD, THE EMPLOYEE'S RIGHT TO REQUEST REPRESENTATION AS A CONDITION

OF PARTICIPATION IN AN INTERVIEW IS LIMITED TO SITUATIONS WHERE THE

EMPLOYEE REASONABLY RELIEVES THE INVESTIGATION WILL RESULT IN

DISCIPLINARY ACTION.  /5/ THUS THE BOARD STATED IN QUALITY: 

"WE WOULD NOT APPLY THE RULE TO SUCH RUN-OF-THE-MILL SHOP

FLOOR

CONVERSATIONS AS, FOR EXAMPLE, THE GIVING OF INSTRUCTIONS OR

TRAINING OR NEEDED CORRECTIONS OF WORK TECHNIQUES.  IN SUCH CASES

THERE CANNOT NORMALLY BE ANY REASONABLE BASIS FOR AN EMPLOYEE TO

FEAR THAT ANY ADVERSE IMPACT MAY RESULT FROM THE INTERVIEW, AND

THUS WE WOULD THEN SEE NO REASONABLE BASIS FOR HIM TO SEEK THE

ASSISTANCE OF HIS REPRESENTATIVE."  195 N.L.R.B.,AT 199. 

FOURTH, EXERCISE OF THE RIGHT MAY NOT INTERFERE WITH LEGITIMATE

EMPLOYER PREROGATIVES.  THE EMPLOYER HAS NO OBLIGATION, AND DESPITE

REFUSAL, THE EMPLOYER IS FREE TO CARRY ON HIS INQUIRY WITHOUT

INTERVIEWING THE EMPLOYEE, AND THUS LEAVE TO THE EMPLOYEE THE CHOICE

BETWEEN HAVING AN INTERVIEW UNACCOMPANIED BY HIS REPRESENTATIVE, OR

HAVING NO INTERVIEW AND FORGOING ANY BENEFITS THAT MIGHT BE DERIVED

FROM ONE.  AS STATED IN MOBIL OIL: 

"THE EMPLOYER 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 RELINQUISHING ANY

BENEFIT WHICH MIGHT BE DERIVED FROM THE INTERVIEW.  THE EMPLOYER WOULD

THEN BE FREE TO ACT ON THE BASIS OF INFORMATION OBTAINED FROM OTHER

SOURCES."  196 N.L.R.B.,AT 1052.  THE BOARD EXPLAINED IN QUALITY: 

"THIS SEEMS TO US TO BE THE ONLY COURSE CONSISTENT WITH ALL OF THE

PROVISIONS OF OUR ACT.  IT PERMITS THE EMPLOYER TO REJECT A COLLECTIVE

COURSE IN SITUATIONS SUCH AS INVESTIGATIVE INTERVIEWS WHERE A

COLLECTIVE COURSE IS NOT REQUIRED BUT PROTECTS THE EMPLOYEE'S RIGHT TO

PROTECTION BY HIS CHOSEN AGENTS.  PARTICIPATION IN THE INTERVIEW IS

THEN VOLUNTARY, AND, IF THE EMPLOYEE HAS REASONABLE GROUND TO FEAR THAT

THE INTERVIEW WILL ADVERSELY AFFECT HIS CONTINUED EMPLOYMENT, OR EVEN

HIS WORKING CONDITIONS, HE MAY CHOOSE TO FOREGO IT UNLESS HE IS

AFFORDED THE SAFEGUARD OF HIS REPRESENTATIVE'S PRESENCE.  HE WOULD THEN

ALSO FOREGO WHATEVER BENEFIT MIGHT COME FROM THE INTERVIEW.  AND, IN

THAT EVENT, THE EMPLOYER WOULD, OF COURSE, BE FREE TO ACT ON THE BASIS

OF WHATEVER INFORMATION HE HAD AND WITHOUT SUCH ADDITIONAL FACTS AS

MIGHT HAVE BEEN GLEANED THROUGH THE INTERVIEW."  195 N.L.R.B.,AT 198 -

199. 

FIFTH, THE EMPLOYER HAS NO DUTY TO BARGAIN WITH ANY UNION

REPRESENTATIVE WHO MAY BE PERMITTED TO ATTEND THE INVESTIGATORY

INTERVIEW.  THE BOARD SAID IN MOBIL, "WE ARE NOT GIVING THE UNION ANY

PARTICULAR RIGHTS WITH RESPECT TO PREDISCIPLINARY DISCUSSIONS WHICH IT

OTHERWISE WAS NOT ABLE TO SEC URE DURING COLLECTIVE-BARGAINING

NEGOTIATIONS."  196 N.L.R.B.,AT 1052 N. 3.  THE BOARD THUS ADHERED TO

ITS DECISIONS DISTINGUISHING BETWEEN DISCIPLINARY AND INVESTIGATORY

INTERVIEWS, IMPOSING A MANDATORY AFFIRMATIVE OBLIGATION TO MEET WITH

THE UNION REPRESENTATIVE ONLY IN THE CASE OF THE DISCIPLINARY

INTERVIEW.  TEXACO, INC., HOUSTON PRODUCING DIVISION, 168 N.L.R.B. 361

(1967); CHEVRON OIL CO., 168 N.L.R.B. 574 (1967); JACOBE-PEARSON FORD,

INC., 172 N.L.R.B. 594 (1968).  THE EMPLOYER HAS NO DUTY TO BARGAIN

WITH THE UNION REPRESENTATIVE AT AN INVESTIGATORY INTERVIEW.  "THE

REPRESENTATIVE IS PRESENT TO ASSIST THE EMPLOYEE, AND MAY ATTEMPT TO

CLARIFY THE FACTS OR SUGGEST OTHER EMPLOYEES WHO MAY HAVE KNOWLEDGE OF

THEM.  THE EMPLOYER, HOWEVER, IS FREE TO INSIST THAT HE IS ONLY

INTERESTED, AT THAT TIME, IN HEARING THE EMPLOYEE'S OWN ACCOUNT OF THE

MATTER UNDER INVESTIGATION."  BRIEF FOR PETITIONER 22. 

III 

THE BOARD'S HOLDING IS A PERMISSIBLE CONSTRUCTION OF "CONCERTED

ACTIVITIES FOR . . . MUTUAL AID OR PROTECTION" BY THE AGENCY CHARGED BY

CONGRESS WITH ENFORCEMENT OF THE ACT, AND SHOULD HAVE BEEN SUSTAINED. 

THE ACTION OF AN EMPLOYEE IN SEEKING TO HAVE THE ASSISTANCE OF HIS

UNION REPRESENTATIVE AT A CONFRONTATION WITH HIS EMPLOYER CLEARLY FALLS

WITHIN THE LITERAL WORDING OF 7 THAT "(EMPLOYEES SHALL HAVE THE RIGHT .

. . TO ENGAGE IN . . . CONCERTED ACTIVITIES FOR THE PURPOSE OF . . .

MUTUAL AID OR PROTECTION."  MOBIL OIL CORP. V. NLRB, 482 F.2D 842, 847

(CA7 1973).  THIS IS TRUE EVEN THOUGH THE EMPLOYEE ALONE MAY HAVE AN

IMMEDIATE STAKE IN THE OUTCOME; HE SEEKS "AID OR PROTECTION"  AGAINST A

PERCEIVED THREAT TO HIS EMPLOYMENT SECURITY.  THE UNION REPRESENTATIVE

WHOSE PARTICIPATION HE SEEKS IS, HOWEVER, SAFEGUARDING NOT ONLY THE

PARTICULAR EMPLOYEE'S INTEREST, BUT ALSO THE INTERESTS OF THE ENTIRE

BARGAINING UNIT BY EXERCISING VIGILANCE TO MAKE CERTAIN THAT THE

EMPLOYER DOES NOT INITIATE OR CONTINUE A PRACTICE OF IMPOSING

PUNISHMENT UNJUSTLY.  /6/  THE REPRESENTATIVE' PRESENCE IS AN ASSURANCE

TO OTHER EMPLOYEES IN THE BARGAINING UNIT THAT THEY, TOO, CAN OBTAIN

HIS AID AND PROTECTION IF CALLED UPON TO ATTEND A LIKE INTERVIEW. 

CONCERTED ACTIVITY FOR MUTUAL AID OR PROTECTION IS THEREFORE AS PRESENT

HERE AS IT WAS HELD TO BE IN NLRB V. PETER CAILLER KOHLER SWISS

CHOCOLATES CO., 130 F.2D 503, 505 - 506 (CA2 1942), CITED WITH APPROVAL

BY THIS COURT IN HOUSTON CONTRACTORS ASSN. V. NLRB, 386 U.S. 664, 668 -

669 (1967): 

"'WHEN ALL THE OTHER WORKMEN IN A SHOP MAKE COMMON CAUSE WITH A

FELLOW WORKMAN OVER HIS SEPARATE GRIEVANCE, AND GO OUT ON STRIKE

IN HIS SUPPORT, THEY ENGAGE IN A "CONCERTED ACTIVITY" FOR "MUTUAL

AID OR PROTECTION," ALTHOUGH THE AGGRIEVED WORKMAN IS THE ONLY

ONE OF THEM WHO HAS ANY IMMEDIATE STAKE IN THE OUTCOME.  THE REST

KNOW THAT BY THEIR ACTION EACH OF THEM ASSURES HIMSELF, IN CASE

HIS TURN EVER COMES, OF THE SUPPORT OF THE ONE WHOM THEY ARE ALL

THEN HELPING; AND THE SOLIDARITY SO ESTABLISHED IS "MUTUAL AID"

IN THE MOST LITERAL SENSE, AS NOBODY DOUBTS.'" 

THE BOARD'S CONSTRUCTION PLAINLY EFFECTUATES THE MOST FUNDAMENTAL

PURPOSES OF THE ACT.  IN 1, 29 U.S.C. 151, THE ACT DECLARES THAT IT IS

A GOAL OF NATIONAL LABOR POLICY TO PROTECT "THE EXERCISE BY WORKERS OF

FULL FREEDOM OF ASSOCIATION, SELF-ORGANIZATION, AND DESIGNATION OF

REPRESENTATIVES OF THEIR OWN CHOOSING, FOR THE PURPOSE OF . . . MUTUAL

AID OR PROTECTION."  TO THAT END THE ACT IS DESIGNED TO ELIMINATE THE

"INEQUALITY OF BARGAINING POWER BETWEEN EMPLOYEES . . . AND

EMPLOYERS."  IBID.  REQUIRING A LONE EMPLOYEE TO ATTEND AN

INVESTIGATORY INTERVIEW WHICH HE REASONABLY BELIEVES MAY RESULT IN THE

IMPOSITION OF DISCIPLINE PERPETUATES THE INEQUALITY THE ACT WAS

DESIGNED TO ELIMINATE, AND BARS RECOURSE TO THE SAFEGUARDS THE ACT

PROVIDED "TO REDRESS THE PERCEIVED IMBALANCE OF ECONOMIC POWER BETWEEN

LABOR AND MANAGEMENT."  AMERICAN SHIP BUILDING CO. V. NLRB, 380 U.S.

300, 316 (1965).  VIEWED IN THIS LIGHT, THE BOARD'S RECOGNITION THAT 7

GUARANTEES AN EMPLOYEE'S RIGHT TO THE PRESENCE OF A UNION

REPRESENTATIVE AT AN INVESTIGATORY INTERVIEW IN WHICH THE RISK OF

DISCIPLINE REASONABLY INHERES IS WITHIN THE PROTECTIVE AMBIT OF THE

TO BE ATTAINED.'"  NLRB V. HEARST PUBLICATIONS, INC., 322 U.S. 111, 124

(1944). 

THE BOARD'S CONSTRUCTION ALSO GIVES RECOGNITION TO THE RIGHT WHEN IT

IS MOST USEFUL TO BOTH EMPLOYEE AND EMPLOYER.  /7/ A SINGLE EMPLOYEE

CONFRONTED BY AN EMPLOYER INVESTIGATING WHETHER CERTAIN CONDUCT

DESERVES DISCIPLINE MAY BE TOO FEARFUL OR INARTICULATE TO RELATE

ACCURATELY THE INCIDENT BEING INVESTIGATED, OR TOO IGNORANT TO RAISE

EXTENUATING FACTORS.  A KNOWLEDGEABLE UNION REPRESENTATIVE COULD ASSIST

THE EMPLOYER BY ELICITING FAVORABLE FACTS, AND SAVE THE EMPLOYER

PRODUCTION TIME BY GETTING TO THE BOTTOM OF THE INCIDENT OCCASIONING

THE INTERVIEW.  CERTAINLY HIS PRESENCE NEED NOT TRANSFORM THE INTERVIEW

INTO AN ADVERSARY CONTEST.  RESPONDENT SUGGESTS NONETHELESS THAT UNION

REPRESENTATION AT THIS STAGE IS UNNECESSARY BECAUSE A DECISION AS TO

EMPLOYEE CULPABILITY OR DISCIPLINARY ACTION CAN BE CORRECTED AFTER THE

DECISION TO IMPOSE DISCIPLINE HAS BECOME FINAL.  IN OTHER WORDS,

RESPONDENT WOULD DEFER REPRESENTATION UNTIL THE FILING OF A FORMAL

GRIEVANCE CHALLENGING THE EMPLOYER'S DETERMINATION OF GUILT AFTER THE

EMPLOYEE HAS BEEN DISCHARGED OR OTHERWISE DISCIPLINED.  /8/ AT THAT

POINT, HOWEVER, IT BECOMES INCREASINGLY DIFFICULT FOR THE EMPLOYEE TO

VINDICATE HIMSELF, AND THE VALUE OF REPRESENTATION IS CORRESPONDINGLY

DIMINISHED.  THE EMPLOYER MAY THEN BE MORE CONCERNED WITH JUSTIFYING

HIS ACTIONS THAN RE-EXAMINING THEM. 

        IV 

THE COURT OF APPEALS REJECTED THE BOARD'S CONSTRUCTION AS FORECLOSED

BY THAT COURT'S DECISION FOUR YEARS EARLIER IN TEXACO, INC., HOUSTON

PRODUCING DIVISION V. NLRB, 408 F.2D 142 (1969), AND BY "A LONG LINE OF

BOARD DECISIONS, EACH OF WHICH INDICATES--EITHER DIRECTLY OR INDIRECTLY

-THAT NO UNION REPRESENTATIVE NEED BE PRESENT" AT AN INVESTIGATORY

INTERVIEW.  485 F.2D,AT 1137. 

THE BOARD DISTINGUISHES TEXACO AS PRESENTING NOT THE QUESTION

WHETHER THE REFUSAL TO ALLOW THE EMPLOYEE TO HAVE HIS UNION

REPRESENTATIVE PRESENT CONSTITUTED A VIOLATION OF 8(A)(1) BUT RATHER

THE QUESTION WHETHER 8(A)(5) PRECLUDED THE EMPLOYER FROM REFUSING TO

DEAL WITH THE UNION.  WE NEED NOT DETERMINE WHETHER TEXACO IS

DISTINGUISHABLE.  INSOFAR AS THE COURT OF APPEALS THERE HELD THAT AN

EMPLOYER DOES NOT VIOLATE 8(A)(1) IF HE DENIES AN EMPLOYEE'S REQUEST

FOR UNION REPRESENTATION AT AN INVESTIGATIVE INTERVIEW, AND REQUIRES

HIM TO ATTEND THE INTERVIEW ALONE, OUR DECISION TODAY REVERSING THE

COURT OF APPEALS' JUDGMENT BASED UPON TEXACO SUPERSEDES THAT HOLDING. 

$ IN RESPECT OF ITS OWN PRECEDENTS, THE BOARD ASSERTS THAT EVEN THOUGH

SOME "MAY BE READ AS REACHING A CONTRARY CONCLUSION," THEY SHOULD NOT

BE TREATED AS IMPAIRING THE VALIDITY OF THE BOARD'S CONSTRUCTION,

BECAUSE "(THESE DECISIONS DO NOT REFLECT A CONSIDERED ANALYSIS OF THE

ISSUE."  BRIEF FOR PETITIONER 25.  /9/ IN THAT CIRCUMSTANCE, AND IN THE

LIGHT OF SIGNIFICANT DEVELOPMENTS IN INDUSTRIAL LIFE BELIEVED BY THE

BOARD TO HAVE WARRANTED A REAPPRAISAL OF THE QUESTION, /10/ THE BOARD

ARUGES THAT THE CASE IS ONE WHERE "(THE NATURE OF THE PROBLEM, AS

REVEALED BY UNFOLDING VARIANT SITUATIONS, INEVITABLY INVOLVES AN

EVOLUTIONARY PROCESS FOR ITS RATIONAL RESPONSE, NOT A QUICK, DEFINITIVE

FORMULA AS A COMPREHENSIVE ANSWER.  AND SO, IT IS NOT SURPRISING THAT

THE BOARD HAS MORE OR LESS FELT ITS WAY . . . AND HAS MODIFIED AND

REFORMED ITS STANDARDS ON THE BASIS OF ACCUMULATING EXPERIENCE. 

EXPERIENCE."  ELECTRICAL WORKERS V. NLRB, 366 U.S. 667, 674 (1961). 

WE AGREE THAT ITS EARLIER PRECEDENTS DO NOT IMPAIR THE VALIDITY OF

THE BOARD'S CONSTRUCTION.  THAT CONSTRUCTION IN NO WISE EXCEEDS THE

REACH OF 7, BUT FALLS WELL WITHIN THE SCOPE OF THE RIGHTS CREATED BY

THAT SECTION.  THE USE BY AN ADMINISTRATIVE AGENCY OF THE EVOLUTIONAL

APPROACH IS PARTICULARLY FITTING.  TO HOLD THAT THE BOARD'S EARLIER

DECISIONS FROZE THE DEVELOPMENT OF THIS IMPORTANT ASPECT OF THE

NATIONAL LABOR LAW WOULD MISCONCEIVE THE NATURE OF ADMINISTRATIVE

DECISIONMAKING."  "'CUMULATIVE EXPERIENCE' BEGETS UNDERSTANDING AND

INSIGHT BY WHICH JUDGMENTS . . . ARE VALIDATED OR QUALIFIED OR

INVALIDATED.  THE CONSTANT PROCESS OF TRIAL AND ERROR, ON A WIDER AND

FULLER SCALE THAN A SINGLE ADVERSARY LITIGATION PERMITS, DIFFERENTIATES

PERHAPS MORE THAN ANYTHING ELSE THE ADMINISTRATIVE FROM THE JUDICIAL

PROCESS."  NLRB V. SEVEN-UP CO., 344 U.S. 344, 349 (1953). 

THE RESPONSIBILITY TO ADAPT THE ACT TO CHANGING PATTERNS OF

INDUSTRIAL LIFE IS ENTRUSTED TO THE BOARD.  THE COURT OF APPEALS

IMPERMISSIBLY ENCROACHED UPON THE BOARD'S FUNCTION IN DETERMINING FOR

ITSELF THAT AN EMPLOYEE HAS NO "NEED" FOR UNION ASSISTANCE AT AN

INVESTIGATORY INTERVIEW.  "WHILE A BASIC PURPOSE OF SECTION 7 IS TO

ALLOW EMPLOYEES TO ENGAGE IN CONCERTED ACTIVITIES FOR THEIR MUTUAL AID

AND PROTECTION, SUCH A NEED DOES NOT ARISE AT AN INVESTIGATORY

INTERVIEW."  485 F.2D,AT 1138.  IT IS THE PROVINCE OF THE BOARD, NOT

THE COURTS, TO DETERMINE WHETHER OR NOT THE "NEED" EXISTS IN LIGHT OF

CHANGING INDUSTRIAL PRACTICES AND THE BOARD'S CUMULATIVE EXPERIENCE IN

DEALING WITH LABOR-MANAGEMENT RELATIONS.  FOR THE BOARD HAS THE

"SPECIAL FUNCTION OF APPLYING THE GENERAL PROVISIONS OF THE ACT TO THE

COMPLEXITIES OF INDUSTRIAL LIFE," NLRB V. ERIE RESISTOR CORP., 373 U.S.

221, 236 (1963); SEE REPUBLIC AVAIATION CORP. V. NLRB, 324 U.S. 793,

798 (1945); PHELPS DODGE CORP. V. NLRB, 313 U.S. 177, 196 - 197 (1941),

AND ITS SPECIAL COMPETENCE IN THIS FIELD IS THE JUSTIFICATION FOR THE

DEFENCE ACCORDED ITS DETERMINATION.  AMERCIAN SHIP BUILDING CO. V.

NLRB, 380 U.S.,AT 316.  REVIEWING COURTS ARE OF COURSE NOT "TO STAND

ASIDE AND RUBBER STAMP" BOARD DETERMINATIONS THAT RUM CONTRARY TO THE

LANGUAGE OR TENOR OF THE ACT, NLRB V. BROWN, 380 U.S. 278, 291 (1965). 

BUT THE BOARD'S CONSTRUCTION HERE, WHILE IT MAY NOT BE REQUIRED BY THE

ACT, IS AT LEAST PERMISSIBLE UNDER IT, AND INSOFAR AS THE BOARD'S

APPLICATION OF THAT MEANING ENGAGES IN THE "DIFFICULT AND DELICATE

RESPONSIBILITY" OF RECONCILING CONFLICTING INTERESTS OF LABOR AND

MANAGEMENT, THE BALANCE STRUCK BY THE BOARD IS "SUBJECT TO LIMITED

JUDICIAL REVIEW."  NLRB V. TRUCK DRIVERS, 353 U.S. 87, 96 (1957).  SEE

ALSO NLRB V. BABCOCK & WILCOX CO., 351 U.S. 105 (1956); NLRB V. BROWN,

SUPRA; REPUBLIC AVIATION CORP. V. NLRB, SUPRA.  IN SUM, THE BOARD HAS

REACHED A FAIR AND REASONED BALANCE UPON A QUESTION WITHIN ITS SPECIAL

COMPETENCE, ITS NEWLY ARRIVED AT CONSTRUCTION OF 7 DOES NOT EXCEED THE

REACH OF THAT SECTION, AND THE BOARD HAS ADEQUATELY EXPLICATED THE

BASIS OF ITS INTERPRETATION. 

THE STATUTORY RIGHT CONFIRMED TODAY IS IN FULL HARMONY WITH ACTUAL

INDUSTRIAL PRACTICE.  MANY IMPORTANT COLLECTIVE-BARGAINING AGREEMENTS

HAVE PROVISIONS THAT ACCORD EMPLOYEES RIGHTS OF UNION REPRESENTATION AT

INVESTIGATORY INTERVIEWS.  /11/ EVEN WHERE SUCH A RIGHT IS NOT

EXPLICITLY PROVIDED IN THE AGREEMENT A "WELL-ESTABLISHED CURRENT OF

ARBITRAL AUTHORITY" SUSTAINS THE RIGHT OF UNION REPRESENTATION AT

INVESTIGATORY INTERVIEWS WHICH THE EMPLOYEE REASONABLY BELIEVES MAY

RESULT IN DISCIPLINARY ACTION AGAINST HIM.  CHEVRON CHEMICAL CO., 60

LAB.ARB.  1066, 1071 (1973).  /12/ 

THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED WITH DIRECTION TO

ENTER A JUDGMENT ENFORCING THE BOARD'S ORDER. 

                  IT IS SO ORDERED. 

/1/ SECTION 8(A)(1), 29 U.S.C. 158(A)(1), PROVIDES THAT IT IS AN

UNFAIR LABOR PRACTICE FOR AN EMPLOYER "TO INTERFERE WITH, RESTRAIN, OR

COERCE EMPLOYEES IN THE EXERCISE OF THE RIGHTS GUARANTEED IN SECTION

157 OF THIS TITLE." 

/2/ SECTION 7, 29 U.S.C. 157, PROVIDES: 

"EMPLOYEES SHALL HAVE THE RIGHT TO SELF-ORGANIZATION, TO FORM, JOIN,

OR ASSIST LABOR ORGANIZATIONS, TO BARGAIN COLLECTIVELY THROUGH

REPRESENTATIVES OF THEIR OWN CHOOSING, AND TO ENGAGE IN OTHER CONCERTED

ACTIVITIES FOR THE PURPOSE OF COLLECTIVE BARGAINING OR OTHER MUTUAL AID

OR PROTECTION, AND SHALL ALSO HAVE THE RIGHT TO REFRAIN FROM ANY OR ALL

OF SUCH ACTIVITIES EXCEPT TO THE EXTENT THAT SUCH RIGHT MAY BE AFFECTED

BY AN AGREEMENT REQUIRING MEMBERSHIP IN A LABOR ORGANIZATION AS A

CONDITION OF EMPLOYMENT AS AUTHORIZED IN SECTION 158(A)(3) OF THIS

TITLE." 

/3/ ACCORD:  NLRB V. QUALITY MFG. CO., 481 F.2D 1018 (CA4 1973),

REV'D, GARMENT WORKERS V. QUALITY MFG. CO., POST, P. 276; MOBIL OIL

CORP. V. NLRB, 482 F.2D 842 (CA7 1973).  THE ISSUE IS A RECURRING ONE. 

IN ADDITION TO THIS CASE AND GARMENT WORKERS V. QUALITY MFG. CO., POST,

P. 276, SEE WESTERN ELECTRIC CO., 205 N.L.R.B. 46 (1973); NEW YORK

TELEPHONE CO., 203 N.L.R.B. 180 (1973); NATIONAL CAN CORP., 200

N.L.R.B. 1116 (1972); WESTERN ELECTRIC CO., 198 N.L.R.B. 82 (1972);

MOBIL OIL CORP., 196 N.L.R.B. 1052 (1972), ENFORCEMENT DENIED, 482 F.2D

842 (CA7 1973); LAFAYETTE RADIO ELECTRONICS, 194 N.L.R.B. 491 (1971);

ILLINOIS BELL TELEPHONE CO., 192 N.L.R.B. 834 (1971); UNITED AIRCRAFT

CORP., 179 N.L.R.B. 935 (1969), AFF'D ON ANOTHER GROUND, 440 F.2D 85

(CA2 1971); TEXACO, INC., LOS ANGELES TERMINAL, 179 N.L.R.B. 976

(1969); WALD MFG. CO., 176 N.L.R.B. 839 (1969), AFF'D ON OTHER GROUNDS,

426 F.2D 1328 (CA6 1970); DAYTON TYPOGRAPHIC SERVICE, INC., 176

N.L.R.B. 357 (1969); JACOBE-PEARSON FORD, INC., 172 N.L.R.B. 594

(1968); CHEVRON OIL CO., 168 N.L.R.B. 574 (1967); TEXACO, INC., HOUSTON

PRODUCING DIVISION, 168 N.L.R.B. 361 (1967), ENFORCEMENT DENIED, 408

F.2D 142 (CA5 1969); ELECTRIC MOTORS & SPECIALTIES, INC., 149 N.L.R.B.

1432 (1964); DOBBS HOUSES, INC., 145 N.L.R.B. 1565 (1964); ROSS GEAR &

TOOL CO., 63 N.L.R.B. 1012 (1945), ENFORCEMENT DENIED, 158 F.2D 607

(CA7 1947).  SEE GENERALLY BRODIE, UNION REPRESENTATION AND THE

DISCIPLINARY INTERVIEW, 15 B.C.IND.  & COM.L.REV.  1 (1973); COMMENT,

UNION PRESENCE IN DISCIPLINARY MEETINGS, 41 U.CHI.L.REV.  329 (1974). 

/4/ THE CHARGES ALSO ALLEGED THAT RESPONDENT HAD VIOLATED 8(A)(5) BY

UNILATERALLY CHANGING A CONDITION OF EMPLOYMENT WHEN, THE DAY AFTER THE

INTERVIEW, RESPONDENT ORDERED DISCONTINUANCE OF THE FREE LUNCH

PRACTICE.  BECAUSE RESPONDENT'S ACTION WAS AN ARBITRABLE GRIEVANCE

UNDER THE COLLECTIVE-BARGAINING AGREEMENT, THE BOARD, PURSUANT TO THE

DEFERRAL-TO-ARBITRATION POLICY ADOPTED IN COLLYER INSULATED WIRE, 192

N.L.R.B. 837 (1971), "DISMISSED" THE 8(A)(5) ALLEGATION.  NO ISSUE

INVOLVING THAT ACTION IS BEFORE US. 

/5/ THE BOARD STATED IN QUALITY:  "'REASONABLE GROUND' WILL OF

COURSE BE MEASURED, AS HERE, BY OBJECTIVE STANDARDS UNDER ALL THE

CIRCUMSTANCES OF THE CASE."  195 N.L.R.B. 197, 198 N. 3.  IN NLRB V.

GISSEL PACKING CO., 395 U.S. 575, 608 (1969), THE COURT ANNOUNCED THAT

IT WOULD "REJECT ANY RULE THAT REQUIRES A PROBE OF AN EMPLOYEE'S

SUBJECTIVE MOTIVATIONS AS INVOLVING AN ENDLESS AND UNRELIABLE INQUIRY,"

AND WE REAFFIRM THAT VIEW TODAY AS APPLICABLE ALSO IN THE CONTEXT OF

THIS CASE.  REASONABLENESS, AS A STANDARD, IS PRESCRIBED IN SEVERAL

PLACES IN THE ACT ITSELF.  E.G., AN EMPLOYER IS NOT RELIEVED OF

RESPONSIBILITY FOR DISCRIMINATION AGAINST AN EMPLOYEE "IF HE HAS

REASONABLE GROUNDS FOR BELIEVING" THAT CERTAIN FACTS EXIST, 8(A)(3)(A),

(B), 29 U.S.C. 158 (A)(3)(A), (B); ALSO, PRELIMINARY INJUNCTIVE RELIEF

AGAINST CERTAIN CONDUCT MUGHT BE SOUGHT IF "THE OFFICER OR REGIONAL

ATTORNEY TO WHOM THE MATTER MAY BE REFERRED HAS REASONABLE CAUSE TO

BELIEVE" SUCH CHARGE IS TRUE, 10(L), 29 U.S.C. 160(L).  SEE ALSO

CONGOLEUM INDUSTRIES, INC., 197 N.L.R.B. 534 (1972); CUMBERLAND SHOE

CORP., 144 N.L.R.B. 1268 (1963), ENFORCED, 351 F.2D 917 (CA6 1965). 

THE KEY OBJECTIVE FACT IN THIS CASE IS THAT THE ONLY EXCEPTION TO

THE REQUIREMENT IN THE COLLECTIVE-BARGAINING AGREEMENT THAT THE

EMPLOYER GIVE A WARNING NOTICE PRIOR TO DISCHARGE IS "IF THE CAUSE OF

SUCH DISCHARGE IS DISHONESTY."  ACCORDINGLY, HAD RESPONDENT BEEN

SATISFIED, BASED ON ITS INVESTIGATORY INTERVIEW, THAT COLLINS WAS

GUILTY OF DISHONESTY, COLLINS COULD HAVE BEEN DISCHARGED WITHOUT

FURTHER NOTICE.  THAT SHE MIGHT REASONABLY BELIEVE THAT THE INTERVIEW

MIGHT RESULT IN DISCIPLINARY ACTION IS THUS CLEAR. 

/6/ "THE QUANTUM OF PROOF THAT THE EMPLOYER CONSIDERS SUFFICIENT TO

SUPPORT DISCIPLINARY ACTION IS OF CONCERN TO THE ENTIRE BARGAINING

UNIT.  A SLOW ACCRETION OF CUSTOM AND PRACTICE MAY COME TO CONTROL THE

HANDLING OF DISCIPLINARY DISPUTES.  IF, FOR EXAMPLE, THE EMPLOYER

ADOPTS A PRACTICE OF CONSIDERING (A) FOREMAN'S UNSUBSTANTIATED

STATEMENTS SUFFICIENT TO SUPPORT DISCIPLINARY ACTION, EMPLOYEE

PROTECTION AGAINST UNWARRANTED PUNISHMENT IS AFFECTED.  THE PRESENCE OF

A UNION STEWARD ALLOWS PROTECTION OF THIS INTEREST BY THE BARGAINING

REPRESENTATIVE."  COMMENT, UNION PRESENCE IN DISCIPLINARY MEETINGS, 41

U.CHI.L.REV.  329, 338 (1974). 

/7/ SEE, E.G., INDEPENDENT LOCK CO., 30 LAB.ARB.  744, 746 (1958):

(PARTICIPATION BY THE UNION REPRESENTATIVE) MIGHT REASONABLY BE

DESIGNED TO CLARIFY THE ISSUES A THIS FIRST STAGE OF THE EXISTENCE OF A

QUESTION, TO GIVE ASSISTANCE TO EMPLOYEES WHO MAY LACK THE ABILITY TO

EXPRESS THEMSELVES IN THEIR CASES, AND WHO, WHEN THEIR LIVELIHOOD IS AT

STAKE, MIGHT IN FACT NEED THE MORE EXPERIENCED KIND OF COUNSEL WHICH

THEIR UNION STEWARD GHT REPRESENT.  THE FOREMAN, HIMSELF, MAY BENEFIT

FROM THE PRESENCE OF THE STEWARD BY SEEING THE ISSUE, THE PROBLEM, THE

IMPLICATIONS OF THE FACTS, AND THE COLLECTIVE BARGAINING CLAUSE IN

QUESTION MORE CLEARLY.  INDEED, GOOD FAITH DISCUSSION AT THIS LEVEL MAY

SOLVE MANY PROBLEMS, AND PREVENT NEEDLESS HARD FEELINGS FROM ARISING .

. .. (IT) CAN BE ADVANTAGEOUS TO BOTH PARTIES IF THEY BOTH ACT IN GOOD

FAITH AND SEEK TO DISCUSS THE QUESTION AT THIS STAGE WITH AS MUCH

INTELLIGENCE AS THEY ARE CAPABLE OF BRINING TO BEAR ON THE PROBLEM." 

SEE ALSO CATERPILLAR TRACTOR CO., 44 LAB.ARB.  647, 651 (1965): 

"THE PROCEDURE . . . CONTEMPLATES THAT THE STEWARD WILL EXERCISE HIS

RESPONSIBILITY AND AUTHORITY TO DISCOURAGE GRIEVANCES WHERE THE ACTION

ON THE PART OF MANAGEMENT APPEARS TO BE JUSTIFIED.  SIMILARLY, THERE

EXISTS THE RESPONSIBILITY UPON MANAGEMENT TO WITHHOLD DISCIPLINARY

ACTION, OR OTHER DECISIONS AFFECTING THE EMPLOYEES, WHERE IT CAN BE

DEMONSTRATED AT THE OUTSET THAT SUCH ACTION IS UNWARRANTED.  THE

PRESENCE OF THE UNION STEWARD IS REGARDED AS A FACTOR CONDUCIVE TO THE

AVOIDANCE OF FORMAL GRIEVANCES THROUGH THE MEDIUM OF DISCUSSION AND

PERSUASION CONDUCTED AT THE THRESHOLD OF AN IMPENDING GRIEVANCE.  IT IS

ENTIRELY LOGICAL THAT THE STEWARD WILL EMPLOY HIS OFFICE IN APPROPRIATE

CASES SO AS TO LIMIT FORMAL GRIEVANCES TO THOSE WHICH INVOLVE

DIFFERENCES OF SUBSTANTIAL MERIT.  WHETHER THIS OBJECTIVE IS

ACCOMPLISHED WILL DEPEND ON THE GOOD FAITH OF THE PARTIES, AND WHETHER

THEY ARE AMENABLE TO REASON AND PERSUASION." 

/8/ 1 CCH LAB.L.REP., UNION CONTRACTS, ARBITRATION PARA. 59,520, PP.

84,988 - 84,989. 

/9/ THE PRECEDENTS CITED BY THE COURT OF APPEALS ARE:  ILLINOIS BELL

TELEPHONE CO., 192 N.L.R.B. 834 (1971); TEXACO, INC., LOS ANGELES

TERMINAL, 179 N.L.R.B. 976 (1969); WALD MFG. CO., 176 N.L.R.B. 839

(1969), AFF'D, 426 F.2D 1328 (CA6 1970); DAYTON TYPOGRAPHIC SERVICE,

INC., 176 N.L.R.B. 357 (1969); JOCOBE-PEARSON FORD, INC., 172 N.L.R.B.

594 (1968); CHEVRON OIL CO., 168 N.L.R.B. 574 (1967); DOBBS HOUSES,

INC., 145 N.L.R.B. 1565 (1964).  SEE ALSO NLRB V. ROSS GEAR & TOOL CO.,

158 F.2D 607 (CA7 1947). 

/10/ "THERE HAS BEEN A RECENT GROWTH IN THE USE OF SOPHISTICATED

TECHNIQUES--SUCH AS CLOSED CIRCUIT TELEVISION, UNDERCOVER SECURITY

AGENTS, AND LIE DETECTORS--TO MONITOR AND INVESTIGATE THE EMPLOYEES'

CONDUCT AT THEIR PLACE OF WORK.  SEE, E.G., WARWICK ELECTRONICS, INC.,

46 L.A. 95, 97 - 98 (1966); BOWMAN TRANSPORTATION, INC., 56 L.A. 283,

286 - 292 (1972); FMC CORP., 46 L.A. 335, 336 - 338 (1966).  THESE

TECHNIQUES INCREASE NOT ONLY THE EMPLOYEES' FEELINGS OF APPREHENSION,

BUT ALSO THEIR NEED FOR EXPERIENCED ASSISTANCE IN DEALING WITH THEM. 

THUS, OFTEN, AS HERE AND IN MOBIL, SUPRA, AN INVESTIGATIVE INTERVIEW IS

CONDUCTED BY SECURITY SPECIALISTS; THE EMPLOYEE DOES NOT CONFRON A

SUPERVISOR WHO IS KNOWN OR FAMILIAR TO HIM, BUT A STRANGER TRAINED

ININTERROGATION TECHNIQUES.  THESE DEVELOPMENTS IN INDUSTRIAL LIFE

WARRANT A CONCOMITANT REAPPRAISAL BY THE BOARD OF THEIR IMPACT ON

STATUTORY RIGHTS.  CF. BOYS MARKETS, INC. V. RETAIL CLERKS, LOCAL 770,

398 U.S. 235, 250."  BRIEF FOR PETITIONER 27 N. 22. 

/11/ 1 BNA COLLECTIVE BARGAINING NEGOTIATIONS AND CONTRACTS 21:22

(GENERAL MOTORS CORP. AND AUTO WORKERS, PARA. 76A); 27:6 (GOODYEAR TIRE

& RUBBER CO. AND RUBBER WORKERS, ART. V (5)); 29:15 - 29:16 (UNITED

STATES STEEL ORP.  COAND UNITED STEELWORKERS, 8B(8.4) AND (8.7).  SEE,

E.G., THE BETHLEHEM STEEL CORP. AND UNITED STEELWORKERS AGREEMENT OF

1971, ART. XI, 4(D), WHICH PROVIDED: 

"ANY EMPLOYEE WHO IS SUMMONED TO MEET IN AN ENCLOSED OFFICE WITH A

SUPERVISOR FOR THE PURPOSE OF DISCUSSING POSSIBLE DISCIPLINARY ACTION

SHALL BE ENTITLED TO BE ACCOMPANIED BY THE ASSISTANT GRIEVANCE

COMMITTEEMAN DESIGNATED FOR THE AREA IF HE REQUESTS SUCH

REPRESENTATION, PROVIDED SUCH REPRESENTATIVE IS AVAILABLE DURING THE

SHIFT." 

/12/ SEE ALSO UNIVERSAL OIL PRODUCTS CO., 60 LAB.ARB.  832, 834

(1973):  "(AN EMPLOYEE IS ENTITLED TO THE PRESENCE OF A COMMITTEEMAN AT

AN INVESTIGATORY INTERVIEW IF HE REQUESTS ONE AND IF THE EMPLOYEE HAS

REASONABLE GROUNDS TO FEAR THAT THE INTERVIEW MAY BE USED TO SUPPORT

DISCIPLINARY ACTION AGAINST HIM."  ALLIED PAPER CO., 53 LAB.ARB.  226

(1969); THRIFTY DRUG STORES CO., INC., 50 LAB.ARB.  1253, 1262 (1968);

WASTE KING UNIVERSAL PRODUCTS CO., 46 LAB.ARB.  283, 286 (1966); DALLAS

MORNING NEWS, 40 LAB.ARB.  619, 623 - 624 (1963); THE ARCRODS CO., 39