E. I. Dupont De Nemours

E. I. DUPONT & CO. E. I. DuPont de Nemours and Walter J. Slaughter. Case 4-CA-9821 June 30, 1988 SECOND SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN, BABSON, AND CRACRAFT 1. PROCEDURAL HISTORY On July 20, 1982, the National Labor Relations Board issued a Decision and Order in the above- entitled proceeding adopting the judge's finding that the Respondent violated Section 8(a)(1) of the National Labor Relations Act by discharging em- ployee Walter J. Slaughter for refusing to submit to an investigatory interview without the presence of a fellow employee.' Thereafter, the Respondent filed a petition for review of the Board's Decision and Order, and the Board filed a cross-application for enforcement with the United States Court of Appeals for the Third Circuit. On December 29, 1983, a panel majority of the court enforced in full the Board's Order.2 On February 1, 1984, the Re- spondent filed a motion for panel rehearing and re- hearing en banc, and on February 17, 1984, the Board moved the court to vacate its decision and remand the matter to the Board for further consid- eration. Thereafter, on May 14, 1984, the Court granted panel rehearing, vacated its opinion at 724 F.2d 1061, and remanded the case to the Board for reconsideration.3 The Board thereafter invited the parties to file statements of position. The Board considered the record and the statement of position filed by each party, and on March 22, 1985, issued a Supplemen- tal Decision and Order reversing the administrative law judge and finding that the Respondent did not violate Section 8(a)(1) of the Act by discharging Slaughter.4 In reversing the administrative law judge, the Board relied on Sears, Roebuck & Co., 274 NLRB 230 (1985), which held that the Act compels a finding that unrepresented employees are not entitled to the presence of a coemployee during an investigatory interview. Thereafter, the Charg- ing Party filed a petition for review of the Board's Supplemental Decision and Order with the United States Court of Appeals for the Third Circuit. On June 27, 1986, the court remanded the case on the 1 262 NLRB 1028 In so finding, the Board relied on Materials Re- search, 262 NLRB 1010 ( 1982), in which the Board held that an employer violates Sec 8(a)(1) by denying to an unrepresented employee the pres- ence of a fellow employee during an investigatory interview 2 724 F 2d 1061 733 F.2d 296 274 NLRB 1104 627 grounds that the Board erroneously assumed that the Act mandated its interpretation.5 Consequently, the court directed the Board to consider whether it would be a permissible interpretation of the Act to conclude that unrepresented employees are not en- titled to the presence of a coemployee during an investigatory interview. On October 1, 1986, the Board notified the par- ties that it had accepted the remand from the court of appeals and invited the parties to submit state- ments of position regarding the remand issues. Thereafter, all parties filed statements of position. II. THE CREDITED EVIDENCE The record shows that on November 17, 1978,6 Walter Slaughter, an employee who was on proba- tion for extensive absenteeism, posted an NLRB notice to employees in the Respondent's canteen.? Thomas Farley, the Respondent's supervisor of op- erations and services, saw Slaughter post the notice and told him to take it down because it had not been approved for posting pursuant to company policy. Slaughter refused to remove the notice and left the canteen area to begin work for the day. Throughout the course of the morning, Farley contacted Slaughter on several occasions to discuss the posting incident. On each occasion Slaughter stated that he would not discuss union business without a third party present. Slaughter solicited two employees who agreed to act as witnesses for him; however, Farley declined to meet in the pres- ence of the coemployees. After lunch, Farley of- fered Slaughter another opportunity to meet with him and, at that time, advised Slaughter that his act of insubordination was jeopardizing his job. Slaughter continued to refuse to meet with Farley. Slaughter was then escorted off the property and subsequently discharged. The Respondent's work force is not represented by a collective-bargaining agent. III. DISCUSSION We agree with the judge that Slaughter was dis- charged solely for his refusal to meet with the Re- spondent to discuss the posting incident unless a coemployee was present to serve as a witness. Con- sequently, the only question before us is whether, in a nonunion setting, an employer violates Section 8(a)(1) by discharging an employee for refusing to submit to an interview without the presence of a fellow employee. S 794 F 2d 120 6 The judge inadvertently found that the incident occurred on Novem- ber 15, 1978 7 The notice stated that a petition for election had been filed with the Board when, in reality, no petition had been filed 289 NLRB No. 81 628 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In NLRB v. J. Weingarten, 420 U.S. 251 (1975), the Supreme Court affirmed, as a permissible con- struction of the Act, the Board's finding that Sec- tion 7 embodies a statutory right for an employee to refuse to submit, without union representation, to an interview by employer representatives that he or she reasonably fears may result in discipline. It therefore upheld the Board's conclusion that an employer violates Section 8(a)(1) of the Act when it denies an employee that right by seeking to compel his or her attendance at such an interview without the presence of a requested union repre- sentative. The Court noted that in recognizing such a right the Board had departed from its earlier precedents; but the court expressed the view that the Board was free to reexamine past constructions of the Act, as it is in the nature of administrative decision-making to proceed through a gradual process, based on "cumulative experience" and "trial and error" in construing and applying the Act. Weingarten, supra, 420 U.S. at 265-266, quot- ing NLRB v. Seven-Up Co., 344 U.S. 344, 349 (1953). That process has continued since the decision in Weingarten. Thus, in Materials Research Corp., 262 NLRB 1010 (1982), the Board extended what had come to be known as "the Weingarten right" to employees in nonunion settings. In Sears, Roebuck & Co., 274 NLRB 230 (1985), the Board reexam- ined the question, overruled Materials Research, and held that the Act compelled the conclusion that the right could not be thus extended. 274 NLRB at 230 fn. 5. As noted above, under the terms of the court of appeals' remand in this case, we are revisiting the question again on the premise, which we adopt, that the holding in Materials Re- search represented a permissible construction of the Act, but not the only permissible construction.8 In undertaking the present reexamination, we are mindful of the Supreme Court's observation in Weingarten that our decisions in this area involve us in the difficult task of "reconciling conflicting interests of labor and management." Id. at 267. In Weingarten, the Court concluded that the Board had struck "a fair and reasoned balance" between those interests. Id. We in no way retreat from the balance struck there, but for the reasons stated below, we believe that in a workplace in which employees are not represented by a union, we are more assured of striking a "fair and reasoned bal- ance" between the conflicting interests by not im- posing the constraints on investigatory interviews 8 In so concluding , we overrule the Board's fmdmg in Sears Roebuck, supra, that the Act compels a finding that unrepresented employees are not entitled to the presence of a fellow employee during an investigatory interview that recognition of "the Weingarten right" entails. Therefore, while recognizing that the statute might be amenable to other interpretations, we decline to return to the rule of Materials Research, and we hold that an employee in a nonunionized work- place does not possess a right under Section 7 to insist on the presence of a fellow employee in an investigatory interview by the employer's repre- sentatives, even if the employee reasonably believes that the interview may lead to discipline. As the Supreme Court's reference to the balanc- ing of interests suggests, this is not an issue that can be resolved by resort to plain language. A lit- eral reading of Section 7 might indeed suggest that it bestows on nonunion employees the right in question here, because an employee who insists on the presence of another employee when facing the employer in a matter that may lead to discipline thereby attempts to engage in concerted activities for "mutual aid or protection," insofar as there is an implicit promise that the employee enlisting sup- port would offer his own support were the other facing such an interview. See Weingarten, supra, 420 U.S. at 261, citing NLRB v. Peter Cailler Kohler Swiss Chocolates Co., 130 F.2d 503, 505-506 (2d Cir. 1942); Slaughter v. NLRB, 794 F.2d 120, 123 (3d Cir. 1986). But this is not necessarily the end of the analysis. For example, an employee who solicits his fellow employees in support of a union during working time is literally engaged in concert- ed activity for mutual aid or protection, but that does not establish that he enjoys a statutory right to engage in such activity without interference by the employer. Rather, the Board has balanced em- ployers' interests in maintaining "discipline in their establishments" against employees' interests in en- gaging in the activities covered by the broad lan- guage of Section 7, and it has thereby arrived at an appropriate rule governing in-plant solicitations. Republic Aviation Corp. v. NLRB, 324 U.S. 793, 797-798 (1945).9 In determining the proper balance in the present case, we must first outline the contours of the Weingarten right as originally set out by the Board in Quality Mfg. Co., 195 NLRB 197 (1972), and Mobil Oil Corp., 196 NLRB 1052 (1972). This was the right as it was understood by the Supreme Court in Weingarten. The right arises only when the employee requests the presence of a union rep- resentative at the interview and when the employ- ee reasonably believes that the interview may lead to discipline. Weingarten , supra, 420 U.S. at 257. Furthermore it does not foreclose the employer 9 Member Cracraft does not rely on the analogy to no-solicitation rules E. I. DUPONT & CO. from deciding not to conduct the interview at all and simply taking disciplinary action without hear- ing the employee's explanations. Similarly, the em- ployee may waive the right to the presence of the union representative at the interview. Finally, if the employer does go forward with the interview with the requested employee representative present, the employer has no obligation to bargain with that representative. Id. at 258-259. A review of the reasons specified by the Court in Weingarten as supporting the balance struck by the Board between the competing interests in that case reveals several interests favoring recognition of the right that are either not present or are less compelling in the nonunion setting. First, the Court noted that a union representative present at an in- vestigatory interview might be able to safeguard .,not only the particular employee's interest, but also the interests of the entire bargaining unit by exercising vigilance to make certain that the em- ployer does not initiate or continue a practice of imposing punishment unjustly." 420 U.S. at 260- 261 .10 The Court placed this assistance to employ- ees in the larger context of the basic purpose of the Act to redress "the perceived imbalance of eco- nomic power between labor and management." Id. at 262. The Court also saw the presence of a union rep- resentative as serving the interest of the employer as well. Thus, it observed that a "knowledgeable union representative could assist the employer by eliciting favorable facts" that an inarticulate em- ployee might be too fearful or otherwise unable to mention, thereby "sav[ing] the employer produc- tion time by getting to the bottom of the incident occasioning the interview." Id. at 263. In this regard, the Court viewed the "presence of the union steward . . . 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." Id. at 262 fn. 7, quoting Caterpillar Tractor Co., 44 Lab. Arb. 647, 651 (1965). Finally, the Court noted that permitting union representation at an investigatory interview was "in full harmony with actual indus- trial practice," noting both the inclusion of provi- sions in many "important collective-bargaining agreements" that grant "employees rights of union representation at investigatory interviews" and the 10 Although, as noted above, an employer has no bargaining obligation in a purely investigatory interview, the presence of a union representative might be very important were the employer to seek to compel the em- ployee whose conduct is under investigation to submit to investigatory procedures that are inconsistent with established conditions of employ- ment, e g , use of a polygraph or other testing procedure prohibited or limited by the collective-bargaining agreement. 629 existence of "arbitral authority" recognizing such a right. Id. at 267. Examining the foregoing considerations in a non- union setting, we conclude that many of the useful objectives listed by the Court either are much less likely to be achieved or are irrelevant. Thus, in a nonunion setting there is no guarantee that the in- terests of the employees as a group would be safe- guarded by the presence of a fellow employee at an investigatory interview. Unlike a union steward (or his or her proxy), a fellow employee in a non- unionized work force has no obligation to repre- sent the interests of the entire bargaining unit." Furthermore, an employee in a nonunion work force would be much less able than a union repre- sentative to "exercis[e] vigilance to make certain that the employer does not initiate or continue a practice of imposing punishment unjustly," 12 as it is unlikely that such an employee would have the benefit of a framework similar to that typically es- tablished in a collective-bargaining agreement in which acts amounting to misconduct and means of dealing with them are defined. Nor would an em- ployee in a nonunion setting be likely to have access to information as to how other employees had been dealt with in similar circumstances; whereas a union representative would typically be entitled to information from which it could be de- termined whether the employer was maintaining consistency and fairness in discipline. Regarding the Court's conclusion that a "knowl- edgeable union representative could assist the em- ployer by eliciting favorable facts, and save the employer production time by getting to the bottom of the incident occasioning the interview" 13- 1 i The Board has, in the past, found that an employer violated Sec. 8(a)(1) by denying to a represented employee the presence of a fellow employee who was not a union representative at an investigatory inter- view. See Chromolloy American Corp., 263 NLRB 244 (1982), Illinois Bell Telephone Co., 251 NLRB 932 (1980), modified 674 F 2d 618 (7th Cir 1982) In Illinois Bell, supra at 934, however, the Board specifically relied on the lack of availability of a designated union representative at the time of the interview; the union steward's instruction to the employee several days before the interview that if called into an investigatory interview she could select any union member as her union representative , manage- ment's failure to attempt to locate a steward or offer to delay the inter- view after telling the employee that it would talk to her with her union steward but no one else; and the lack of evidence that the parties had negotiated in their collective -bargaining agreement a provision that would waive an employee's right to request a representative other than a union representative In Chromalloy American Corp, the Board majority relied on similar circumstances in finding that an employer violated Sec 8(axl) by denying an employee the presence of a fellow employee during an investigatory interview . We note that in these circumstances, as the fellow employee is substituting for an absent union representive, the em- ployee representative still has the responsibility of protecting the interests of the entire bargaining unit In light of the Board's qualifying statements , we do not read Illinois Bell and its progeny to support the position that an employee in a non- union work force has the right to the presence of a fellow employee during an investigatory interview 12 Weingarten, 420 U S. at 260-261 13 Weingarten, 420 U S at 263 630 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD while such assistance might be rendered on some occasions by fellow employees, there is a smaller likelihood that this will be so. As former Member Hunter pointed out in his partial dissent in Materi- als Research Corp., supra, 262 NLRB at 1021: [T]he employer in the nonunion situation is likely to find itself confronted by a "represent- ative" who has few or even an absence of the skills or responsibilities that one would expect from a union steward. It must therefore deal with a person who has no experience in deal- ing with these situations and who, out of prob- able friendship for the interviewee, may be in- volved emotionally in the interview. See also Slaughter v. NLRB, 794 F.2d 120, 124 fn. 3 (3d Cir. 1986). In short, a union steward-who, in addition to being familiar with the applicable col- lective-bargaining agreement and the underlying law of the shop, may also have been specially trained by his or her union in assisting employees at an investigatory interview and in helping to defuse potentially disruptive encounters-might well be able to help elicit facts and save "produc- tion time" as a result. It is unlikely that an employ- ee in a nonunion setting would possess similar skills, and thus unlikely that his presence would save "production time." 14 It is of course obvious that the value of represen- tation at an investigatory interview as a means of heading off formal grievances has virtually no ap- plication in the nonunion setting. Even though an employer has no bargaining obligation at such interviews, a union steward might propose solu- tions that would avoid further conflict over the matter in question and his early involvement in the situation might enable him to discourage the em- ployee from filing a frivolous grievance. In the nonunion workplace there typically is no enforcea- ble grievance procedure through which the em- ployee could seek further recourse and thus no question arises of discouraging the filing of griev- ances, frivolous or otherwise. Finally, although most of the discussion in Wein- garten and its progeny focuses on the benefits of representation when an employer actually goes for- ward with an investigatory interview (and the em- ployee has decided not to waive the Weingarten right), it is well to consider also the consequences of an employer's decision not to conduct such an interview. If an employer with union-represented 14 As the administrative law judge in Materials Research noted con- cerning employee Hockman's request for the presence of a fellow em- ployee at his interview with his department supervisor , not only was it unlikely that such an employee would be an "experienced representative who [could] save production time", "his own time on the [plant] floor would be lost " 262 NLRB at 1026 employees decides to forego an interview rather than conduct it with an employee representative present, the employee whose conduct was to be in- vestigated will lose the chance to tell his or her side of the story at that interview; but if discipline ensues, he can (assuming relevant time limitations are met) have his defense presented thereafter in whatever framework for resolving grievances has been established within the collective-bargaining relationship. There is no such assurance for the em- ployee in the nonunion setting. To the extent that recognition of a nonunion Weingarten right induces employees to insist on a condition that may in turn induce employers simply to cancel investigatory interviews (unless the employee waives his Wein- garten right), there is a serious question whether extending the right to nonunion employees may not work as much to their disavantage as to their ad- vantage. In short, there is no denying that an employee in a workplace without union representation might welcome the support of a fellow employee at an interview he or she fears will lead to discipline and no denying that, in some circumstances, the pres- ence of such a person might aid the employee or both the employee and the employer. But, for the reasons already stated, the interests in assuring such representation under Section 7 are less numerous and less weighty than the interests apparent in the union setting. Taking into account the more ques- tionable value of such a right in the nonunion set- ting, we find that the interests of both labor and management are better served by declining to extend this right into that forum. In so holding, we also take into account the nonunion employers' in- terests in conducting investigations in accordance with their own established practices and proce- dures and in maintaining efficiency of operation.15 We believe this conclusion to be fully consistent with the Supreme Court's decision in Weingarten. It is not only that, as shown, the separate factors on which the Court rested its decision translate poorly into a case involving a nonunion workplace. It is that the terms of the Court's discourse throughout, and the framework in which it ana- lyzed the relevant interests, presuppose union rep- resentation.16 Thus, while nothing in Weingarten 15 Our finding that an employee in the nonunion setting does not enjoy the right to insist on the presence of a fellow employee at an investiga- tory interview should not be read as implying that an employee enjoys no protected right simply to ask for the presence of a fellow employee at such an interview The mere act of making such a request in no way im- pairs the employer interests involved here and thus we would not need to strike the balance as we have done on the facts presented in this case. 16 In Chairman Stephens' view, this is not surprising . Although the right at issue was clearly identified as a Sec. 7 right protected through the prohibitions of Sec. 8(a)(1), its historical roots were in the values pro- Continued E. I. DUPONT & CO. inexorably precludes us from extending the right, we are confident that in carrying out our responsi- bility here-defined by the Court as achieving a "fair and reasoned" balance between the conflict- ing interests of labor and management-we best ef- fectuate the purposes of the Act by limiting the tected by Sec. 8(aX5). See Materials Research, supra, 262 NLRB at 1017- 1018 (former Chairman Van de Water, concurring and dissenting). In Chairman Stephens' view, the reasoning of both the Board and the Court in Weingarten in part echoed the rationale of the 8(aX5) precedents. 631 right of representation in investigatory interviews to employees in unionized workplaces who request the presence of a union representative. Cf. Meyers Industries, 281 NLRB 882, 883 (1986), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987). Accordingly, we reaffirm our prior dismissal of the complaint. ORDER The complaint is dismissed.