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
LAB.ARB. 784, 788 - 789 (1962); VALLEY IRON WORKS, 33 LAB.ARB. 769,
771 (1960); SCHLITZ BREWING CO., 33 LAB.ARB. 57, 60 (1959); SINGER
MFG. CO., 28 LAB.ARB. 570 (1957); BRANIFF AIRWAYS, INC., 27 LAB.ARB.
892 (1957); JOHN LUCAS & CO., 19 LAB.ARB. 344, 346 - 347 (1952).
CONTRA, E.G., E. I. DUPONT DE NEMOURS & CO., 29 LAB.ARB. 646, 652
(1957); UNITED AIR LINES, INC., 28 LAB.ARB. 179, 180 (1956).
MR. CHIEF JUSTICE BURGER, DISSENTING. /1/
TODAY THE COURT STATES THAT, IN POSITING A NEW 7 RIGHT FOR
EMPLOYEES, THE "BOARD HAS ADEQUATELY EXPLICATED THE BASIS OF ITS
INTERPRETATION." ANTE, AT 267. I AGREE THAT THE BOARD HAS THE POWER
TO CHANGE ITS POSITION, BUT SINCE TODAY'S CASES REPRESENT A MAJOR
CHANGE IN POLICY AND A DEPARTURE FROM BOARD DECISIONS SPANNING ALMOST
30 YEARS THE CHANGE OUGHT TO BE JUSTIFIED BY A REASONED BOARD OPINION.
THE BRIEF BUT SPECTACULAR EVOLUTION OF THE RIGHT, ONCE RECOGNIZED,
ILLUSTRATES THE PROBLEM. IN QUALITY MFG. CO., 195 N.L.R.B. 197, 198
(1972), THE BOARD DISTINGUISHED ITS PRIOR CASES ON THE GROUND, INTER
ALIA, THAT "NONE OF THOSE CASES PRESENTED A SITUATION WHERE AN EMPLOYEE
OR HIS REPRESENTATIVE HAD BEEN DISCIPLINED OR DISCHARGED FOR
REQUESTING, OR INSISTING ON, UNION REPRESENTATION IN THE COURSE OF AN
INTERVIEW." YET, SOON AFTERWARDS THE BOARD EXTENDED THE RIGHT WITHOUT
EXPLANATION TO SITUATIONS WHERE NO DISCIPLINE OR DISCHARGE RESULTED.
MOBIL OIL CORP., 196 N.L.R.B. 1052 (1972); J. WEINGARTEN INC., 202
N.L.R.B. 446 (1973).
THE TORTURED HISTORY AND INCONSISTENCY OF THE BOARD'S EFFORTS IN
THIS DIFFICULT AREA SUGGEST THE NEED FOR AN EXPLANATION BY THE BOARD OF
WHY THE NEW RULE WAS ADOPTED. HOWEVER, A MUCH MORE BASIC POLICY
DEMANDS THAT THE BOARD EXPLAIN ITS NEW CONSTRUCTION. THE INTEGRITY OF
THE ADMINISTRATIVE PROCESS REQUIRES THAT "(WHEN THE BOARD SO EXERCISES
THE DISCRETION GIVEN TO IT BY CONGRESS, IT MUST 'DISCLOSE THE BASIS OF
ITS ORDER' AND 'GIVE CLEAR INDICATION THAT IT HAS EXERCISED THE
DISCRETION WITH WHICH CONGRESS HAS EMPOWERED IT.' PHELPS DODGE CORP.
V. LABOR BOARD, 313 U.S. 177, 197." NLRB V. METROPOLITAN
380 U.S. INS. CO., 438, 443 (1965). HERE, THERE MAY BE VERY GOOD
REASONS FOR ADOPTING THE NEW RULE, AND THE COURT SUGGESTS SOME. SEE
ANTE, AT 260 - 261; 262 - 264; 265 N. 10. BUT THESE REASONS ARE NOT TO
BE FOUND IN THE BOARD'S CASES. IN METROPOLITAN INS. CO., SUPRA, AT
444, WE MADE IT CLEAR THAT "'COURTS MAY NOT ACCEPT APPELLATE COUNSEL'S
POST HOC RATIONALIZATIONS FOR AGENCY ACTION.'" THE COURT TODAY GIVES
LIP SERVICE TO THE RULE THAT COURTS ARE NOT "'TO STAND ASIDE AND RUBBER
STAMP'" BOARD DETERMINATIONS. ANTE, AT 266.
I WOULD THEREFORE REMAND THE CASES TO THE COURT OF APPEALS WITH
DIRECTIONS TO REMAND TO THE BOARD SO THAT IT MAY ENLIGHTEN US AS TO THE
REASONS FOR THIS MARKED HANGE IN POLICY RATHER THAN LEAVE WITH THIS
COURT THE BURDEN OF JUSTIFYING THE CHANGE FOR REASONS WHICH WE ARRIVE
AT BY INFERENCE AND SURMISE.
/1/ (THIS OPINION APPLIES ALSO TO NO. 73 - 765, INTERNATIONAL
LADIES' GARMENT WORKERS' UNION, UPPER SOUTH DEPARTMENT, AFL-CIO V.
QUALITY MANUFACTURING CO. ET AL., POST, P. 276.)
MR. JUSTICE POWELL, WITH WHOM MR. JUSTICE STEWART JOINS,
DISSENTING.
140, GUARANTEES TO EMPLOYEES THE RIGHT TO "ENGAGE IN . . . CONCERTED
ACTIVITIES FOR THE PURPOSE OF COLLECTIVE BARGAINING OR OTHER MUTUAL AID
OR PROTECTION." THE COURT TODAY CONSTRUES THAT RIGHT TO INCLUDE UNION
REPRESENTATION OR THE PRESENCE OF ANOTHER EMPLOYEE /1/ AT ANY INTERVIEW
THE EMPLOYEE REASONABLY FEARS INTERVIEW IS NOT CONCERTED ACTIVITY
WITHIN THE INTENDMENT OF THE ACT. AN EMPLOYEE'S RIGHT TO HAVE A UNION
REPRESENTATIVE OR ANOTHER EMPLOYEE PRESENT AT AN INVESTIGATORY
INTERVIEW IS A MATTER THAT CONGRESS LEFT TO THE FREE AND FLEXIBLE
EXCHANGE OF THE BARGAINING PROCESS.
THE MAJORITY OPINION ACKNOWLEDGES THAT THE NLRB HAS ONLY RECENTLY
DISCOVERED THE RIGHT TO UNION REPRESENTATION IN EMPLOYER INTERVIEWS.
IN FACT, AS LATE AS 1964--AFTER ALMOST 30 YEARS OF EXPERIENCE WITH 7--
THE BOARD FLATLY REJECTED AN EMPLOYEE'S CLAIM THAT SHE WAS ENTITLED TO
UNION REPRESENTATION IN A "DISCHARGE CONVERSATION" WITH THE GENERAL
MANAGER, WHO LATER ADMITTED THAT HE HAD ALREADY DECIDED TO FIRE HER.
THE BOARD ADOPTED THE TRIAL EXAMINER'S ANALYSIS:
"I FAIL TO PERCEIVE ANYTHING IN THE ACT WHICH OBLIGES AN
EMPLOYER TO PERMIT THE PRESENCE OF A REPRESENTATIVE OF THE
BARGAINING AGENT IN EVERY SITUATION WHERE AN EMPLOYER IS
COMPELLED TO ADMONISH OR TO OTHERWISE TAKE DISCIPLINARY ACTION
AGAINST AN EMPLOYEE, PARTICULARLY IN THOSE SITUATIONS WHERE THE
EMPLOYEE'S CONDUCT IS UNRELATED TO ANY LEGITIMATE UNION OR
CONCERTED ACTIVITY. AN EMPLOYER UNDOUBTEDLY HAS THE RIGHT TO
MAINTAIN DAY-TO-DAY DISCIPLINE IN THE PLANT OR ON THE WORKING
PREMISES AND ITS SEEMS TO ME THAT ONLY EXCEPTIONAL CIRCUMSTANCES
SHOULD WARRANT ANY INTERFERENCE WITH THIS RIGHT." DOBBS HOUSES,
INC., 145 N.L.R.B. 1565, 1571 (1964). /2/
THE CONVOLUTED COURS5 OF LITIGATION FROM DOBBS HOUSES TO QUALITY
MFG. HARDLY SUGGESTS THAT THE BOARD'S CHANGE OF HEART RESULTED FROM A
LOGICAL "EVOLUTIONAL APPROACH." ANTE, AT 265. THE BOARD INITIALLY
RETREATED FROM DOBBS HOUSES, DECIDING THAT IT ONLY APPLIED TO
"INVESTIGATORY" INTERVIEWS AND HOLDING THAT IF THE EMPLOYER ALREADY HAD
DECIDED ON DISCIPLINE THE UNION HAD A 8(A)(5) RIGHT TO ATTEND THE
INTERVIEW. TEXACO, INC., HOUSTON PRODUCING DIVISION, 168 N.L.R.B. 361
(1967), ENFORCEMENT DENIED, 408 F.2D 142 (CA5 1969). IT REASONED THAT
EMPLOYEE DISCIPLINE SUFFICIENTLY AFFECTS A "TERM OR CONDITION OF
EMPLOYMENT" TO IMPLICATE THE EMPLOYER'S OBLIGATION TO CONSULT WITH THE
EMPLOYEE'S BARGAINING REPRESENTATIVE, AND THAT DIRECT DEALING WITH AN
EMPLOYEE ON AN ISSUE OF DISCIPLINE VIOLATED 8(A)(5). /3/ FOR SEVERAL
YEARS, THE BOARD ADHERED TO ITS DISTINCTION BETWEEN "INVESTIGATIVE" AND
"DISCIPLINARY" INTERVIEWS, DISMISSING CLAIMS UNDER BOTH 8(A)(1) AND
8(A)(5) IN THE ABSENCE OF EVIDENCE THAT THE EMPLOYER HAD DECIDED TO
DISCIPLINE THE EMPLOYEE. /4/
QUALITY MFG. CO. WAS FIRST CASE IN WHICH THE BOARD PERCEIVED ANY
GREATER CONTENT IN 7. IT DID SO, NOT BY RELYING ON "SIGNIFICANT
DEVELOPMENTS IN INDUSTRIAL LIFE," ANTE, AT 265, BUT BY STATING SIMPLY
THAT IN NONE OF THE EARLIER CASES HAD A WORKER BEEN FIRED FOR INSISTING
ON UNION REPRESENTATION. THE BOARD ALSO ASSERTED, FOR THE FIRST TIME,
THAT ITS EARLIER DECISIONS HAD DISPOSED OF ONLY THE UNION'S RIGHT TO
BARGAIN WITH THE EMPLOYER OVER THE DISCIPLINE TO BE IMPOSED, AND HAD
NOT DEALT WITH THE EMPLOYEE'S RIGHT UNDER 7 TO INSIST ON UNION PRESENCE
AT MEETINGS THAT HE REASONABLY FEARS WOULD LEAD TO DISCIPLINARY
ACTION. 195 N.L.R.B. 197, 198. EVEN THIS DISTINCTION WAS ABANDONED
SOME FOUR MONTHS LATER IN MOBIL OIL CORP., 196 N.L.R.B. 1052 (1972),
ENFORCEMENT DENIED, 482 F.2D 842 (CA7 1973). THERE THE BOARD FOLLOWED
QUALITY MFG., EVEN THOUGH THE EMPLOYEES IN MOBIL OIL HAD NOT BEEN FIRED
FOR INSISTING ON UNION REPRESENTATION AND THEIR ONLY CLAIM WAS THAT THE
EMPLOYER HAD EXCLUDED THE UNION FROM AN INVESTIGATORY INTERVIEW. THUS,
THE BOARD HAS TURNED ITS BACK ON DOBBS HOUSES AND NOW FINDS A 7 RIGHT
TO INSIST ON UNION PRESENCE IN THE ABSENCE OF ANY EVIDENCE THAT THE
EMPLOYER HAS DECIDED TO EMBARK ON A COURSE OF DISCIPLINE.
CONGRESS' GOAL IN ENACTING FEDERAL LABOR LEGISLATION WAS TO CREATE A
FRAMEWORK WITHIN WHICH LABOR AND MANAGEMENT CAN ESTABLISH THE MUTUAL
RIGHTS AND OBLIGATIONS THAT GOVERN THE EMPLOYMENT RELATIONSHIP. "THE
THEORY OF THE ACT IS THAT FREE OPPORTUNITY FOR NEGOTIATION WITH
ACCREDITED REPRESENTATIVES OF EMPLOYEES IS LIKELY TO PROMOTE INDUSTRIAL
PEACE AND MAY BRING ABOUT THE ADJUSTMENTS AND AGREEMENTS WHICH THE ACT
IN ITSELF DOES NOT ATTEMPT TO COMPEL." NLRB V. JONES & LAUGHLIN STEEL
CORP., 301 U.S. 1, 45 (1937). THE NATIONAL LABOR RELATIONS ACT ONLY
CREATES THE STRUCTURE FOR THE PARTIES' EXERCISE OF THEIR RESPECTIVE
ECONOMIC STRENGTHS; IT LEAVES DEFINITION OF THE PRECISE CONTOURS OF THE
EMPLOYMENT RELATIONSHIP TO THE COLLECTIVE-BARGAINING PROCESS. SEE
PORTER CO. V. NLRB, 397 U.S. 99, 108 (1970); NLRB V. AMERICAN NATIONAL
INSURANCE CO., 343 U.S. 395, 402 (1952).
AS THE COURT NOTED IN EMPORIUM CAPWELL CO. V. WESTERN ADDITION
COMMUNITY ORGANIZATION, 7 GUARANTEES EMPLOYEES' BASIC RIGHTS OF
INDUSTRIAL SELF-ORGANIZATION, RIGHTS WHICH ARE FOR THE MOST PART
"COLLECTIVE RIGHTS . . . TO ACT IN CONCERT WITH ONE'S FELLOW EMPLOYEES,
(WHICH) ARE PROTECTED, NOT FOR THEIR OWN SAKE, BUT AS AN INSTRUMENT OF
THE NATIONAL LABOR POLICY OF MINIMIZING INDUSTRIAL STRIFE 'BY
ENCOURAGING THE PRACTICE AND PROCEDURE OF COLLECTIVE BARGAINING.'"
ANTE, AT 62. SECTION 7 PROTECTS THOSE RIGHTS THAT ARE ESSENTIAL TO
EMPLOYEE SELF-ORGANIZATION AND TO THE EXERCISE OF ECONOMIC WEAPONS TO
EXACT CONCESSIONS FROM MANAGEMENT AND DEMAND A VOICE IN DEFINING THE
TERMS OF THE EMPLOYMENT RELATIONSHIP. /5/ IT DOES NOT DEFINE THOSE
TERMS ITSELF.
THE POWER TO DISCIPLINE OR DISCHARGE EMPLOYEES HAS BEEN RECOGNIZED
UNIFORMLY AS ONE OF THE ELEMENTAL PERROGATIVES OF MANAGEMENT. ABSENT
SPECIFIC LIMITATIONS IMPOSED BY STATUTE. /6/ OR THROUGH THE PROCESS OF
COLLECTIVE BARGAINING, /7/ MANAGEMENT REMAINS FREE TO DISCHARGE
EMPLOYEES AT WILL. SEE STEELWORKERS V. WARRIOR & GULF CO., 363 U.S.
574, 583 (1960). AN EMPLOYER'S NEED TO CONSIDER AND UNDERTAKE
DISCIPLINARY ACTION WILL ARISE IN A WIDE VARIETY OF UNPREDICTABLE
SITUATIONS. THE APPROPRIATE DISCIPLINARY RESPONSE ALSO WILL VARY
SIGNIFICANTLY, DEPENDING ON THE NATURE AND SEVERITY OF THE EMPLOYEE'S
CONDUCT. LIKEWISE, THE NATURE AND AMOUNT OF INFORMATION REQUIRED FOR
DETERMINING THE APPROPRIATENESS OF DISCIPLINARY ACTION MAY VARY WITH
THE SEVERITY OF THE POSSIBLE SANCTION AND THE COMPLEXITY OF THE
PROBLEM. AND IN SOME INSTANCES, THE EMPLOYER'S LEGITIMATE NEED TO
MAINTAIN DISCIPLINE AND SECURITY MAY REQUIRE AN IMMEDIATE RESPONSE.
THIS VARIETY AND COMPLEXITY NECESSARILY CALL FOR FLEXIBLE AND CREATIVE
ADJUSTMENT. AS THE COURT RECOGNIZES, ANTE, AT 267, THE QUESTION OF
UNION PARTICIPATION IN INVESTIGATORY INTERVIEWS IS A STANDARD TOPIC OF
COLLECTIVE BARGAINING. /8/ MANY AGREEMENTS INCORPORATE PROVISIONS
THAT GRANT AND DEFINE SUCH RIGHTS, AND ARBITRATION DECISIONS
INCREASINGLY HAVE BEGUN TO RECOGNIZE THEM AS WELL. RATHER THAN
VINDICATE THE BOARD'S INTERPRETATION OF 7, HOWEVER, THESE DEVELOPMENTS
SUGGEST TO ME THAT UNION REPRESENTATION IN INVESTIGATORY INTERVIEWS IS
A MATTER THAT CONGRESS LEFT TO THE BARGAINING PROCESS. EVEN AFTER
AFFORDING APPROPRIATE DEFERENCE TO THE BOARD'S MEANDERING
INTERPRETATION OF THE ACT, I CONCLUDE THAT THE RIGHT ANNOUNCED TODAY IS
NOT AMONG THOSE THAT CONGRESS INTENDED TO PROTECT IN 7. THE TYPE OF
PERSONALIZED INTERVIEW WITH WHICH WE ARE HERE CONCERNED IS SIMPLY NOT
"CONCERTED ACTIVITY" WITHIN THE MEANING OF THE ACT.
/1/ WHILE THE COURT SPEAKS ONLY OF THE RIGHT TO INSIST ON THE
PRESENCE OF A UNION REPRESENTATIVE, IT MUST BE ASSUMED THAT THE 7 RIGHT
TODAY RECOGNIZED, AFFORDING EMPLOYEES THE RIGHT TO ACT "IN CONCERT" IN
EMPLOYER INTERVIEWS, ALSO EXISTS IN THE ABSENCE OF A RECOGNIZED UNION.
CF. NLRB V. WASHINGTON ALUMINUM CO., 370 U.S. 9 (1962).
/2/ IN ONE EARLIER CASE THE BOARD HAD FOUND A 8(A)(1) VIOLATION IN
THE EMPLOYER'S REFUSAL TO ADMIT A UNION REPRESENTATIVE TO AN
INTERVIEW. ROSS GEAR & TOOL CO., 63 N.L.R.B. 1012, 1033 - 1034 (1945),
ENFORCEMENT DENIED, 158 F.2D 607, 611 - 614 (CA7 1947). IN THAT CASE,
HOWEVER, THE BOARD FOUND THAT THE EMPLOYEE, A UNION COMMITTEE MEMBER,
WAS CALLED IN TO DISCUSS A PENDING UNION ISSUE. THE BOARD FOUND THAT
DISCHARGING HER FOR INSISTING ON THE PRESENCE OF THE ENTIRE COMMITTEE
WAS A DISCRIMINATORY DISCHARGE UNDER 8(A)(1). THE OPINION IN DOBBS
HOUSES DISTINGUISHED ROSS GEAR ON THE GROUND THAT THE MATTER UNDER
INVESTIGATION WAS PROTECTED UNION ACTIVITY. 145 N.L.R.B.,AT 1571.
/3/ THE BOARD HAS NOT BEEN CALLED UPON TO PURSUE ITS 8(A)(5) THEORY
TO ITS LOGICAL CONCLUSION. ITS DETERMINATION THAT ALL DISCIPLINARY
DECISIONS ARE MATTERS THAT INVOKE THE EMPLOYER'S MANDATORY DUTY TO
BARGAIN WOULD SEEM TO SUGGEST THAT, ABSENT SOME QUALIFICATION OF THE
DUTY CONTAINED IN THE COLLECTIVE-BARGAINING AGREEMENT, FEDERAL LAW WILL
NOW BE READ TO REQUIRE THAT THE EMPLOYER BARGAIN TO IMPASSE BEFORE
INITIATING UNILATERAL ACTION ON DISCIPLINARY MATTERS. IT IS DIFFICULT
TO BELIEVE THAT CONGRESS INTENDED SUCH A RADICAL RESTRICTION OF THE
EMPLOYER'S POWER TO DISCIPLINE EMPLOYEES. SEE FIBREBOARD CORP. V. NLRB
, 379 U.S. 203, 217, 218, 223 (STEWART, J., CONCURRING).
/4/ LAFAYETTE RADIO ELECTRONICS, 194 N.L.R.B. 491 (1971); ILLINOIS
BELL TELEPHONE CO., 192 N.L.R.B. 834 (1971); TEXACO, INC., LOS ANGELES
TERMINAL, 179 N.L.R.B. 976 (1969); JACOBE-PEARSON FORD, INC., 172
N.L.R.B. 594 (1968); CHEVRON COIL CO., 168 N.L.R.B. 574 (1967).
/5/ BY CONTRAST, THE EMPLOYEE'S 7 RIGHT ANNOUNCED TODAY MAY PROVE TO
BE OF LIMITED VALUE TO THE EMPLOYEE OR TO THE STABILIZATION OF LABOR
RELATIONS GENERALLY. THE COURT APPEARS TO ADOPT THE BOARD'S VIEW THAT
INVESTIGATORY INTERVIEWS ARE NOT BARGAINING SESSIONS AND THAT THE
EMPLOYER LEGITIMATELY CAN INSIST ON HEARING ONLY THE EMPLOYEE'S VERSION
OF THE FACTS. ABSENT EMPLOYER INVITATION, IT WOULD APPEAR THAT THE
EMPLOYEE'S 7 RIGHT DOES NOT ENCOMPASS THE RIGHT TO INSIST ON THE
PARTICIPATION OF THE PERSON HE BRINGS WITH HIM TO THE INVESTIGATORY
MEETING. THE NEW RIGHT THUS APPEARS RESTRICTED TO THE PRIVILEGE TO
INSIST ON THE MUTE AND INACTIVE PRESENCE OF A FELLOW EMPLOYEE OR A
UNION REPRESENTATIVE; A WITNESS TO THE INTERVIEW, PERHAPS.
/6/ SECTION 8(A)(1) FORBIDS EMPLOYERS TO TAKE DISCIPLINARY ACTIONS
THAT "INTERFERE WITH, RESTRAIN, OR COERCE" THE EMPLOYEE'S EXERCISE OF 7
RIGHTS. OTHER FEDERAL STATUTES ALSO LIMIT IN CERTAIN RESPECTS THE
EMPLOYER'S BASIC POWER TO DISCIPLINE AND DISCHARGE EMPLOYEES. SEE,
E.G., 706 OF THE CIVIL RIGHTS ACT OF 1964, 78 STAT. 259, 42 U.S.C.
2000E - 5; AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, 81 STAT. 602,
29 U.S.C. 623.
/7/ THE BOARD AND THE COURTS HAVE RECOGNIZED THAT UNION DEMANDS FOR
PROVISIONS LIMITING THE EMPLOYER'S POWER TO DISCHARGE CAN BE THE
SUBJECT OF MANDATORY BARGAINING. SEE FIBREBOARD CORP. V. NLRB, 379
U.S.,AT 217, 221 - 223 (STEWART, J., CONCURRING).
/8/ THE HISTORY OF A SIMILAR CASE, MOBIL OIL, 196 N.L.R.B. 1052
(1972), ENFORCEMENT DENIED, 482 F.2D 842 (CA7 1973), ILLUSTRATES HOW
THE BOARD HAS SUBSTITUTED ITS JUDGMENT FOR THAT OF THE COLLECTIVE
BARGAISNING PROCESS. DURING NEGOTIATIONS LEADING TO THE ESTABLISHMENT
OF A COLLECTIVE-BARGAINING AGREEMENT IN THAT CASE, THE UNION ADVANCED A
DEMAND THAT EXISTING PROVISIONS GOVERNING SUSPENSION AND DISCHARGE BE
AMENDED TO PROVIDE FOR COMPANY-UNION DISCUSSIONS PRIOR TO DISCIPLINARY
ACTION. THE EMPLOYER REFUSED TO A CEDE TO THAT DEMAND AND ULTIMATELY
PR AILED, ONLY TO FIND HIS EFFORTS AT THE BARGAINING TABLE VOIDED BY
THE BOARD'S INTERPRETATION OF THE STATUTE.
CHAIRMAN MILLER SUBSEQUENTLY SUGGESTED THAT THE UNION CAN WAIVE THE
EMPLOYEE'S 7 RIGHT TO THE PRESENCE OF A UNION REPRESENTATIVE. SEE
WESTERN ELECTRIC CO., 198 N.L.R.B. 82 (1972). THE COURT TODAY PROVIDES
NO INDICATION WHETHER SUCH WAIVERS IN THE COLLECTIVE-BARGAINING PROCESS
ARE PERMISSIBLE. CF. NLRB V. MAGNAVOX CO., 415 U.S. 322 (1974).
PATRICK HARDIN ARGUED THE CAUSE FOR PETITIONER. WITH HIM ON THE
BRIEF WERE SOLICITOR GENERAL BORK, PETER G. NASH, JOHN S. IRVING,
NORTON J. COME, AND LINDA SHER.
NEIL MARTIN ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT.
JERRY KRONENBERG AND MILTON SMITH FILED A BRIEF FOR THE CHAMBER OF
COMMERCE OF THE UNITED STATES AS AMICUS CURIAE URGING AFFIRMANCE.
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