Prudential Insurance Co. Of America

208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Prudential Insurance Company of America and Marie Spencer. Case 7-CA-16314 25 April 1985 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 14 January 1981 the National Labor Rela- tions Board issued a Decision and Order in this proceeding,' finding that the Respondent violated Section 8(a)(1) of the Act by denying employee Marie Spencer's request for union representation2 at an interview Spencer reasonably believed could result in her discipline.3 In so finding, the Board relied on its decision in Prudential Insurance Co., 251 NLRB 1591 (1980), enf. denied 661 F.2d 398 (5th Cir. 1981) (Prudential]) to hold that the Union had not waived the unit employees' right to insist on union representation at investigatory inter- views.4 The Respondent filed a petition for review of the Board's Decision and Order with the United States Court of Appeals for the Sixth Circuit, and the Board filed a cross-petition for enforcement of its Order. On 23 March 1982 the court granted the Board's motion to remand this case to the Board for reconsideration in light of the former Fifth Cir- cuit's5 decision in Prudential I. In that case the court denied enforcement of the Board's Order in Prudential I on the ground that the Union had waived the unit employees' right to insist on union representation at investigatory interviews. On 10 August 1982 the Board informed the par- ties that it intended to reconsider the instant case and invited them to submit statements of position. The Respondent, the General Counsel,6 and the Union filed statements of position. For the reasons set forth below, we find that the collective-bargaining agreement between the Re- spondent and the Union contains a clause that con- stitutes a waiver of the unit employees' right to insist on union representation at investigatory inter- views. Accordingly, we shall vacate the Board's 1 254 NLRB 247 (1981) 2 At all relevant times Spencer was represented by Insurance Workers International Union (the Union) 3 NLRB Y J Weingarten, 420 U S 251 (1975) 4 In all pertinent parts, the collective-bargaining agreements in Pruden- tial I and this case are the same 5 This decision was reported as a "Fifth Circuit, Unit B" decision That court is now the Eleventh Ci,cuit 6 The General Counsel also filed an "Errata" to his statement of posi- tion, and the Respondent filed a reply initial Decision and Order in this matter and dis- miss the complaint.? I. BACKGROUND In both Prudential I and the instant case individ- ual employees requested union representation at in- vestigatory interviews they reasonably believed could result in their discipline. In each instance, the Respondent denied the request and conducted the interview relying on the following clause in the collective-bargaining agreement: The Union further agrees that neither the Union nor its members shall interfere with the right of the Employer: (b) To interview any Agent with respect to any phase of his work without the grievance committee being present. In Prudential I the Board held that the above clause was not a waiver of employees' Weingarten rights. The Board based its conclusion on three fac- tors: (1) the clause was originally inserted into the parties' collective-bargaining agreement 19 years before the Supreme Court's Weingarten decision; (2) the clause applies to a "grievance committee" rather than a Weingarten representative; and (3) the Union consistently has tried to negotiate the clause out of the collective-bargaining agreement. Based on these factors the Board concluded that the Union did not "clear[ly] and unequivocal[ly]" waive employees' Weingarten rights. The Board relied on its decision in Prudential I in making the same finding in the instant case. As noted above, the Fifth Circuit denied en- forcement of the Board's Order in Prudential I The court held that a union has the authority under the Act to waive the Weingarten rights of employees it represents, and that the above clause constituted a waiver of the unit employees' Wein- garten rights. II. THE PARTIES' POSITIONS The Respondent renews its contention that the collective-bargaining agreement between it and the Union constitutes a clear and unmistakable waiver of the unit employees' Weingarten rights. It argues that principles of res judicata and collateral estop- pel compel the Board to accept the Fifth Circuit's holding in Prudential I that the contract clause at issue is a waiver of the employees' Weingarten rights. Alternatively, the Respondent argues that ' Because the collective-bargaining agreement in the instant case is identical, in pertinent part, to that in Prudential I, the Board's Decision and Order in Prudential I is overruled to the extent it is inconsistent with this decision 275 NLRB No. 30 PRUDENTIAL INSURANCE CO. - the clause serves as an effective waiver even with- out reference-to the circuit court's decision; - The General Counsel takes the position that the Fifth Circuit's decision in Prudential I resolves the waiver issue in the instant case, and that the Board should adopt that resolution. The General Counsel further urges,' however; that although an employer and a union properly can waive the employees' right to union representation at investigatory inter- views, the Board should not hold that a' union can waive the employees' right to a nonunion repre ; sentative in the Weingarten setting. Finally, the General Counsel sets forth an argument on behalf of the Charging Party supporting the proposition that a union cannot lawfully waive employees' Weingarten rights. The Union asserts that `the Board should affirm its original Order in this case. Citing the Board's decision in Materials' Research Corp., 262 NLRB 1010 (1982), it argues that Weingarten rights are fundamental individual employee rights not subject to waiver by a union. The Union also contends-that the Fifth Circuit's decision in Prudential I is incor- rect. III. DISCUSSION We believe that the Board wrongly decided the waiver issue in Prudential I, and because this issue is a recurring one, we deem it advisable and appro- priate to address the waiver issue on the merits. We agree with the Fifth Circuit that the contract clause at issue here constitutes a waiver of the unit employees' Weingarten rights. The threshold question in this case is whether a union can waive employees' Weingarten rights. In Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983), the Supreme Court explicitly reaffirmed the principle that a union may waive an employee's statutory rights. As the Court stated: Such waivers are valid because they "rest on `the premise of fair representation' and presup- pose that the selection of the bargaining repre- sentative `remains free."'8 Relying on the same premise, the Court noted that unions are charged with serving the entire bargain- ing unit and therefore may choose to bargain away certain statutory protections in order to secure other gains. As a result, even "individual rights may be waived by the union so long as the union does not breach its duty of good-faith representa- 8 Metropolitan Edison , supra at 705 (quoting from NLRB v Magnavox Co, 415 U S 322, 325 (1974), in which the Court held that a union may not waive rights so as to impair the employees' choice of their bargaining representative, such as by waiving employees' rights to distribute litera- ture in nonwork areas) 209 tion."9 The test approved by the Supreme Court is whether the waiver of a statutory right is "clear and' unmistakable."' ° In applying that 'test, the Court recognized that assessing the "clarity" of a waiver would "require consideration of the specific circumstances of each case."11 Regarding the protected nature of the Weingar- ten right itself, it is well settled that the right is grounded in Section 7's guarantee of the right of employees to engage in concerted activities for mutual aid 'or protection. In Sears, Roebuck & Co., 12 the Board recently; reaffirmed' the construc- tion of Section 7 as including the right to,union representation on the employee's request at an in- vestigatory interview. In that case, however, over- ruling Materials Research, the Board also held that the right does not extend to unrepresented employ- ees. -Thus, although the Weingarten right is triggered only by an employee's request, and although that employee alone may have an immediate stake in the outcome of the interview, it is clear that the ex- clusive" bargaining representative also has an impor- tant stake in the' process.13 Consequently, because the union's duty of fair representation allows for flexibility in collective-bargaining negotiations with the employer, the Weingarten right, like the right to strike, is subject to being waived by the union. We further find that the contract clause at issue constitutes a clear and unmistakable waiver of the unit employees' Weingarten rights. As the Fifth Circuit noted in Prudential I, the clause first ap- peared in the parties' 1956 collective-bargaining agreement following the alleged harassment of an employee during an investigatory interview. The clause remained in each successive collective-bar- gaining agreement. From the clause's inception, the Respondent has maintained that the clause allows it to conduct investigatory interviews without the presence of a union representative. As noted above, the Board found previously that the clause was not a waiver because it predated the Supreme Court's Weingarten decision, it referred to a "grievance committee" rather than a representa- tive, and the Union has consistently tried to negoti- ate the clause out of the agreement. We cannot agree with that analysis. First, although the clause first appeared pre- Weingarten, the clause has appeared in three con- 8 Id at 706-707 fn 11 10, Id at 708 11 Id at 709 12 274 NLRB 230 (1985) (Member Hunter, concurring) 13 As noted in Sears, the Supreme Court's opinion in Weingarten "con- templated that the [union] representative safeguard 'not only the particu- lar employee's interest, but also the interests of the entire bargaining unit "' (Id at 231-232, quoting from 420 U S at 260 ) 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tracts since that decision . It appears to have been consistently applied to investigatory interviews. Thus, the clause is clearly applicable to Weingarten rights. Second, the reference to "grievance committee" plainly means a union representative . The phrase is so recognized by the Respondent and the Union. Third, the Union's efforts to remove the clause from the contract through bargaining or by assert- ing its illegality are an indication that the Union itself recognizes the clause as a waiver of the em- ployees' Weingarten rights. More importantly, how- ever, the fact remains that the Union has repeated- ly agreed to the contract clause knowing full well that the Respondent views the clause and has ap- plied the clause as a waiver. The Board has long held that, simply because a party is unhappy with a contract provision it has agreed to, the Board will not step in to alter the provision's plain meaning. Hearst Corp., 113 NLRB 1067, 1071-72 (1955); Shell Oil Co., 93 NLRB 161 , 164-165 ( 1951). The Board has reasoned on this point as follows: To hold otherwise is to encourage one party to a bargaining agreement to resort to the Board's processes to upset the terms of a con- tract which the other party to the agreement had every good reason to believe had been sta- bilized for a definite period. Hearst Corp., 113 NLRB at 1071-72. Finally, as the Fifth Circuit noted in interpreting the clause, "[I]t is not clear what the clause waived if it did not waive the Union 's Weingarten right." 661 F.2d at 401 . Thus, unless the clause serves as a waiver, it would have no meaning at all. In summary , we find that the Board incorrectly decided the waiver issue in Prudential I, and that decision is overruled to the extent inconsistent with the instant decision . We also find, contrary to the Board's initial decision in this case, that a union can waive employees' Weingarten rights, and that the contract clause at issue here constitutes a clear and unmistakable waiver of such statutory rights. ORDER The National Labor Relations Board's Order re- ported at 254 NLRB 247 (1981) is vacated and the complaint is dismissed.