holding that reasonable employee could not fear discipline from employer interview after receiving oral assurance from his supervisor that "nothing would happen to him as a result of the meeting"
How later courts described this case
- holding that reasonable employee could not fear discipline from employer interview after receiving oral assurance from his supervisor that "nothing would happen to him as a result of the meeting"
- reversing NLRB’s conclusion that employee reasonably feared discipline where employee was familiar with the disciplinary procedures at the plant and was specifically told that he would not be disciplined
- stating Weingarten rights ripen only if employee requests union representation
- employer expressly disclaimed possibility of disciplinary action; held, no right to union representation
Written by the judges who cited it.
The opinion
KEITH, Circuit Judge,
dissenting.
I respectfully disagree with the majority opinion because it fails to recognize that the factual situation presented before us is within the teaching of NLRB v. Weingarten, 420 U.S. 251 , 95 S.Ct. 959 , 43 L.Ed.2d 171 (1974). In Weingarten , the Supreme Court approved the creation of a “§ 7 statutory right in an employee to refuse to submit, without union representation to an interview which he reasonably fears may result in his [the employee’s] discipline.” Id. at 256, 95 S.Ct. at 963 . To trigger the protection afforded under Weingarten an employee must fear that disciplinary actions may be taken against him during an encounter with the employer. After recounting the facts in detail, the majority stated that the employee Lannie Daniell had no reasonable belief that his encounter with Shift Supervisor Hightower might result in disciplinary actions against Daniell. In support of this position, the majority points to the fact that Daniell had been a union steward and was aware of company policy requiring the employer to summon a union representative, if the employee requested it. In its eagerness to limit Weingarten , the majority totally ignores the dynamics of the encounter between Hightower and Daniell.
Employee Daniell left the second of two meetings in which Supervisor Hightower was speaking to the employees before the address was over. Shortly after the speech, Hightower saw Daniell and summoned him into Hightower’s office. Mr. Daniell did not refuse to enter Mr. Hightower’s office, rather the employee complied with the employer’s request. Once inside the office, Supervisor Hightower began interrogating employee Daniell as to why he had left the meeting prematurely. Only after perceiving the tenor of the conversation did Daniell determine that it was in his best interest to have a union witness present. Apparently Daniell believed that the confrontation with the supervisor could result in his being disciplined. Subsequent events verified this initial perception.
Immediately upon returning with the union steward, Daniell received notice of his suspension from the job because he failed to remain in the room as requested by two supervisors. Spartan Stores further instructed Daniell that he could return on Monday to receive the final disposition of his case. On Monday Daniell learned of his discharge, allegedly for insubordination. The Board found that Spartan Stores had responded to Daniell’s insistence on having union representation present by firing him. This discharge violated § 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158 (a)(1). The basis for this conclusion was a finding that Daniell’s conduct was a request to have union representation present. I think that there is substantial evidence to support this finding.
The majority opinion reasons that Daniell’s hasty departure “precluded Hightower from either ascertaining whether Daniell wanted a steward present or from summoning a steward according to established company policy.” This position is untenable. Nothing prevented Supervisor Hightower from having the union representative paged. Furthermore, Daniell announced that he was leaving to find the union representative; obviously, Hightower knew of the employee’s desire to have the union representative present. Yet the majority would have had Daniell remain in an office with two management personnel to request that they call the union representative.
In support of this tight rope approach, the majority looks to NLRB v. Weingarten, *960 supra. Weingarten establishes the right of union representation whenever the employee is involved in an interview that the employee reasonably believes may result in his being subjected to company discipline. Daniell was being forced to explain or defend his conduct to Hightower. The encounter between the two men occurred on the heels of a fairly volatile event. It exalts form over substance to conclude that Daniell failed to make a request following his announcement that he was going to find the union steward. Had Daniell made a request for union representation, refused to answer any questions until the steward arrived and then been discharged for insubordination, I presume the majority would find the facts falling within the “contours and limits” of Weingarten . Such a limited and technical application of Weingarten’s principles is unwarranted. Neither Weingarten nor the majority would require a written request before triggering the protections of § 7. Yet the majority blindly refuses to acknowledge that this conduct constituted a request for union representation in a meeting between employer and employee. This literal approach violates the spirit of Weingarten because it ignores the principal concerns of that decision.
Speaking for the Court, Justice Brennan noted:
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 “[ejmployees shall have the right ... to engage in . concerted activities for the purpose of mutual aid or protection.” 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. Weingarten at 259-60, 95 S.Ct. at 965 (emphasis supplied).
The triggering catalyst for Weingarten protections is the confrontational aspect of a meeting between employers and employees. Daniell obediently complied with Supervisor Hightower’s initial request. Only after the employee was being asked to defend or explain his conduct did the employee demand (by conduct) a union representative for the duration of the interview. Weingarten permits the waiver by conduct of this right to have union representation present. In other words, “the employee may forego his guaranteed right and, if he prefers, participate in an interview unaccompanied by his union representative.” Id. at 257 , 95 S.Ct. at 963 . Daniell chose not to participate in an interview without witnesses. He did not waive this right. The rationale for the guaranteed right is as follows:
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.
Id. at 262-63 , 95 S.Ct. at 966 (emphasis added).
In our case Daniell announced his intention of securing union assistance before continuing the interview with company personnel, Hightower and Smith. Daniell obviously feared repercussions. Accompanied by the union steward, Daniell returned immediately to the supervisor’s office only to discover that he had been suspended. A few days later he was discharged. Based on the above, it is evident that there was substantial evidence supporting enforcement of the Board’s order. Because the majority unnecessarily restricts the “con *961 tours and limits” of Weingarten , I respectfully dissent.