Petitioners Brief — Garment Workers v. Quality Mfg. Co.

Supreme Court brief1975

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TABLE OF CONTENTS

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II. The Board’s Conclusions And Order ......... 8

III. The Decision Of The Court Of Appeals........ 12

UMMARY OF ARGUMENT... 220.500. 5.5seveececceeess 14

ARGUMENT

I. The National Labor Relations Act Protects

An Employee from Compulsory Attendance

Without Union Representation at An Interview

Which He Reasonabiy Believes May Result

in His Subjection To Discipline ............. 19

II. An Employee’s Statutory Right To Refuse To

Submit Without Union Representation to An

Interview in Which the Risk of Discipline

Reasonably Inheres Harmonizes With Actual

eg ee Oe ee ee Teer 23

III. The Bases Asserted To Deny the Existence of a

Statutory Right To Refuse To Submit Without

Union Representation To An Interview in

Which the Risk of Discipline Reasonably In-

heres Are Without Merit ..... re ee re 25

A. The Claim Based On The Asserted Invalidity

of The ‘‘Reasonable Grounds’”’ Standard .. 25

ii - Table of Contents Continued

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B. The Claim Based On Assertion That The

Right May Be Secured By Contract But

Does Not Exist By Statute ............... 26

C. The Claim Based On Precedent ........... 28

COMCEAMIOM oo ccc ccccnceccccoressesesevcssescsecrs 37

AUTHORITIES CITED

CasEs:

Alexander v. Gardner-Denver Co., 42 USLW 4214.... 27

Allied Paper Co., 53 LA 226 ...................0000, 25

American Ship Building Co. v. N.L.R.B., 380 U.S.

UW spake kon Soeceeesceeesgeensscusd seeeees iene 23

American Steel Foundries v. Tri-City Council, 257

Mts AO. nie Ne eee 4h cede oe neee sees eee es 18, 21, 36

Appalachian Coals v. United States, 288 U.S. 344 ..... 34

Arcrods Co., 39 LA 784 ......... cc eee e cece eee ees 25

Arnold v. Carpenters District Council of Jacksonville,

42 USLW 4754 ...... cece cece cece eee ees 27

Boys Markets v. Retail Clerks Union, 398 U.S. 235.... 34

Braniff Airways, 27 LA 892 ..................00005, 25

Caterpillar Tractor Co., 44 LA 647 ................. 24

Chevron Chemical Co., 60 LA 1066 ................ 17, 23

Chevron Oil Co., 168 NLRB 574 .................... 30

Curtiss-Wright Corp. v. N.L.R.B., 347 F.2d 61 ........ 32

- Dallas Morning News, 40 LA 619 ................... 25

Dayton Typographic Service, 176 NLRB 357 ........ 30

Dobbs Houses, 145 NLRB 1565 ..................... 28

Electric Motors & Specialties, 149 NLRB 1432 ....... 28

Illinois Bell Tel. Co., 192 NLRB 834 ................ 29

Independent Lock Co., 30 LA 744 ................... 25

Inland Steel Co. v. N.L.R.B., 170 F.2d 247....:..... 32, 35

IUE v. N.L.R.B., 366 W.S 667 ..................04.5. 34

Jacobe-Pearson Ford, 172 NLRB 594 ............... 29

John Lucas & Co, 19 LA 344 ....................... 25

J. Weingarten, Inc., 202 NLRB No. 69 ............... 30

Lafayette Radio Electronics, 194 NLRB 491.......... 29

Table of Contents Continued iii

AUTHORITIES CITED

Page

Mobil Corp. v. N.L.R.B., 482 F.2d 842 .............. 13-14

Mobil Oil Corp., 196 NLRB 1052 .......... 10, 16, 21-22, —

N.L.B.B. v. Acme Industrial Co., 385 U.S. 432........

N.L.R.B. v. Erie Resistor Corp., 373 U.S. 221........ 36

N.L.R.B. v. Fansteel Metallurgical Corp., 306 U.S. 240 23

N.L.R.B. v. Hearst Publications, 322 U.S. 111........ 23

N.L.R.B. v. Local No. 1229 IBEW, 346 U.S. 464....... 23

N.L.R.B. v. Magnavox Co., 42 USLW 4300 .......... 30

N.L.B.B. v. Ross Gear & Tool Co., 458 F.2d 607..\... 28

N.L.R.B. v. Sands Mfg. Co., 306 US. 332 .......0000. 23

N.L.R.B. v. Seven-Up Bottling Co., 344 U.S. 344 ...... 34

N.L.R.B. v. Truitt Mfg Co., 351 U.S. 149............. 32

N.L.R.B. v. Washington Aluminum Co. ,s0U.S.9. 32

N.L.R.B. v. Weingarten, 485 F.2d 1135............... 14

National Can Corp., 200 NLRB No. 156 ............. 29

National Licorice Co. v. N.L.R.B., 309 U.S. 350 ....... 32

N.Y. Telephone Co., 203 NLRB No. 46 ............... 30

Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177 ... 18, 19,

Pick-N-Pay Supermarkets, 52 LA 832 ...............

Quality Mfg. Co., 195 NLRB 197 ................... 30

Republic Aviation Co. v. N.L.R.B., 324 U.S. 793..... 19, 36

Schlitz Brewing Co., 33 LA 57 .......... 0.2... eee eee 25

Singer Mfg. Co., 28 LA 570 ........... cece ee eee es 25

Southern Steamship Co. v. N.L.R.B., 316 U.S. 31...... 23

Texaco, Inc., 168 NLRB 361 (1967) ................ 29

Texaco, Inc., 179 NLRB 976 (1969) ................. 29

Texaco, Ine. v. N.L.R.B., 408 F.2d 142 ............. 29-30

Thrifty Drug Stores Co., 50 LA 1253 ............... 25

United Aircraft Corp., 179 NLRB 935 .............. 29

Universal Oil Products Co., 60 LA 832 ............. 17, 25

Valley Iron Works, 33 LA "169 ececeecccceccee eee 25

Wald Mfg. Co., 176 NLRB 839 ..................... 29

Waste King Universal Products Co., 46 LA 283...... 25

Weems v. United States, 217 U.S. 349 2... .. sees 35

Western Electric Co., 198 NLRB No. 82 (1972) ...... 30

Western Electric Co., 205 NLRB No. 46 (1973)....... 30

STATUTEs :

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iv Table of Contents Continued

Page

National Labor Relations Act, 29 U.S.C. § 151:

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LEGISLATIVE MATERIAL:

S. Rep. No. 573, 74th Cong., 1st Sess., 3 (1935) ...... 17, 21

MISCELLANEOUS:

a ne in Union Contracts, 95:2 (BNA, Feb.

ER. cecckdahou pinsovdseeavibvensddeniarerueee

Brodie, D.W., Union Representation and The Dis-

ciplinary Interview, 15 Bost. Col. Ind. Comm.

Le, Bes Ty Ae CN kinvn wacieSdcaeeunscroe ness

Dunau, Contractual Prohibition of Unfair Labor

Fame Jurisdictional Problems, 57 Col. L. Rev. |

Elkouri, F. and Elkouri, E.A., How Arbitration Works,

GIO-GGS (Oe 06, TOTB). ... ncn cecscccecndsccenens

Jones, D. L., The Supervisor and The Disciplinary

Process In A Unionized Setting, 26 Personnel Ad-

ministration 42 (1963) ............... eee ceee

Phelps, O. W., Discipline and Discharge in the

Unionized Firm (1959) ............... 00 cece ees

Slichter, Healy & Livernash, The Impact of Collective

Bargaining on Management, 646 (1960) ....... 16, 23

Stessin, L., Employee Discipline (1960) .............

Sear

INTHE

Supreme Court of the United States

OctoBER TERM, 1973

No. 73-765

INTERNATIONAL LADIES’ GARMENT WorKERS’. UNION,

Uprer SoutH DEPARTMENT, AFL-CIO, Petitioner

Vv.

QUALITY MANUFACTURING CoMPANY and

NaTIonaL LaBor RELATIONS Boarp

On Writ of Certiorari to the United States Court of Appeals

for the Fourth Circuit

BRIEF FOR PETITIONER

OPINIONS BELOW

The opinion of the Court of Appeals is reported at

481 F.2d 1018 (P. 58a-7la).’ The opinion of the

National Labor Relations Board is reported at 195

NLRB 197 (P. 1a-58a).

1 The letter ‘‘P.’’ refers to the petition for a writ of certiorari;

the letter ‘‘A.’’ refers to the single appendix before this Court.

pee i

ENGI. SOLIDLY AE REILLY BELLE IIO LOA SDRC Cg co

RATS Se P POS Pe ace

JURISDICTION

The judgment of the Court of Appeals was entered

on July 19, 1973 (P. 72a). On October 5, 1973, Mr.

Chief Justice Warren E. Burger entered an order

extending the time within which to file a petition for

a writ of certiorari to December, 17, 1973. The peti-

tion for a writ of certiorari, filed on November 12, 1973,

was granted on April 29, 1974 (A. 200). The juris-

‘ diction of this Court rests on 28 U.S.C. § 1254(1).

QUESTION PRESENTED

Whether the National Labor Relations Act protects

‘an employee and her fellow-employees who are her

union representatives from discharge or other dis-

cipline by their employer where (1) the employer dis-

charges the employee because she declines to submit to

questioning by her employer which she reasonably be-

lieves may lead to disciplinary actjon against her

unless she is accompanied by and has the assistance of

. her union representative at the interview, and (2) the

employer suspends one union representative, and sus-

pends and later discharges another union representa-

tive, because they seek to furnish the representation

asked of them by their fellow-employee.

STATUTE INVOLVED

Section 7 of the National Labor Relations Act (29

U.S.C. § 151) accords employees inter alia ‘‘the right

. 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. .. .’’ Section 8(a) (1)

of the Act makes it an unfair labor practice for an

employer ‘‘to interfere with, restrain, or coerce em-

PA PELE

ployees in the exercise of the rights guaranteed in sec-

tion 7’’; section 8(a)(3) makes it an unfair labor

practice for an employer ‘‘by discrimination in. .

employment to encourage or discourage membership

in any labor organization .. .’’; and section 8(a) (5)

makes it an unfair labor practice for an employer ‘‘to

refuse to bargain collectively with the representatives

of his employees. . . .”’

STATEMENT

I. The Findings

The findings of the National Labor Relations Board,

affirmed by the Court of Appeals, may be summarized

as follows:

Quality Manufacturing Company (the Company)

is engaged in the manufacture of women’s clothing

at Point Pleasant, West Virginia (P. 2a, 19a; A.3, 8).

Its owners and principal officers are Lawrence Ger-

lach, Sr., president; Mary Kathryn Gerlach, his wife

and production manager; and Lawrence Gerlach, Jr.,

their son and general manager (P. 2a, 59a; A. 4, 8, 17,

68-69). The Union since 1968 has been the certified

collective bargaining representative of the Company’s

production and maintenance employees (P. 20a, 59a;

A. 4-5, 8). The agreement between the Company and

the Union provides that ‘‘[t]here shall be a Shop

Chairlady ... selected by or under the auspices of the

Union”’ (A. 189). In 1969 Delila Mulford was the

Shop Chairlady (P. 23a, 59a; A. 24, 34, 45, 61-62, 185) ;

Martha Cochran was Assistant Shop Chairlady and

Secretary-Treasurer of the Union (P. 20a, 60a; A. 24,

33-34, 184-185) ; and Catherine King was a long-time

employee of the Company (P. 2a, 59a; A. 70).

On October 16, 1969, the Company discharged

Catherine King because she had refused to attend a

conference at the Company’s request without union

representation in circumstances where she ‘‘had reason-

able grounds to believe that disciplinary action might

result from the Employer’s investigation of her .

conduct”? (P. 4a, 7a, 24a). On October 12, 1969, the

Company had suspended shop chairlady Delila Mulford

for two days, and on October 16, 1969, the Company

discharged her, for her persistence ‘‘in seeking to

represent King at the conference . .. [which the Com-

pany] requested’’ (P. 3a, 4a, 8a, 23a-24a). On October

14, 1969, the Company had suspended assistant shop

chairlady Martha Cochran for two days for the same

reason (P. 3a-4a, 8a, 21a). On October 16, 1969, the

Company - discharged Martha Cochran for ‘‘filing

grievances on behalf of herself, Mulford, and King’’

(P. 4a, 9a, 22a). ;

The events which culminated in the suspensions and

discharges began on the morning of Friday, October

10, 1969. On.that morning shop chairlady Delila Mul-

ford, employee Catherine King, and two other em-

ployees met with all three Gerlachs. At the meeting

the employees complained that they could not make a

satisfactory wage under the piece work system then

in effect. The discussion ended with Gerlach, Jr.,

ordering Mulford to return to her work station and

telling her ‘‘if [the employees] didn’t like the way it

was there in the company to go elsewhere.’”’ (P. 2a,

23a, 59a; A. 46, 58, 57-58, 73, 78.)

Later the same day, while on the production floor,

Mrs. Gerlach noticed that King had shut down her

machine, and was waving her arms and gesturing,

causing some minor disturbance. Two other employees

had stopped their machines and were watching King.

Mrs. Gerlach directed King to resume production, but

King told her to ‘‘tend to your business.’’ Thereupon

Mrs. Gerlach ordered King to go to Mr. Gerlach’s

office. King did, but on her way to the office she asked

shop chairlady Mulford to accompany fler. Mrs. Ger-

lach warned Mulford that she ‘‘had no business down

there,’’ but Mulford left her work station and accom-

panied King to the anteroom of Mr. Gerlach’s office.

Mrs. Gerlach informed her husband of what had

transpired. Mr. Gerlach told Mulford to return to her

work station because ‘“‘it wasn’t a grievance and

[they] didn’t have any business with her.’”? Mulford

refused, replying that ‘‘Catherine paid her dues and

she was entitled to [have me] be there,’’ to which the

Gerlachs rejoined that Mulford ‘‘was endangering

... [her] job...’’ Mr. Gerlach ordered King to come

into his office for a discussion but King replied that she

would not without Mulford. Gerlach then told both

King and Mulford to return to their work stations.

They did. On Sunday, October 12, Mrs. Gerlach at her

husband’s request telephoned Mulford and informed

her that she was suspended for two days. She gave

no reason, but Mulford understood that it was because

of her conduct in seeking to represent King on the

previous Friday, as it was. (P. 2a-3a, 23a-24a, 59a-

60a; A. 46-48, 55-56, 73-74, 75, 79-80, 82-83, 92, 126-127,

134, 137-138, 165, 173.)

The following Monday, October 13, King found

upon reporting for work that her time card was not

in the rack, indicating under plant practice that she

~ was wanted in Mr. Gerlach’s office. This time King

asked Martha Cochran, the assistant shop chairlady,

to accompany and represent her. Cochran went with

SIE EATS SRR OR CEE ONIN PE ETN OI INR A THRE TB OE EW ost

RUA IER

King without first ‘‘punching in’”’ on her own time

card. They met Mrs. Gerlach outside the office. She

warned Cochran that ‘‘your time card is upstairs and

my advice to you is to go upstairs and go to work if

you want your job.’’ She added that the Gerlachs

wanted to talk only to King and ‘‘take up where we

left off Friday.’’ Cochran replied, ‘‘Well, Mrs. Ger-

lach, I’m sorry, but if that’s what you want to talk to

her about, that is union business and she has asked me

to represent her,’’ stating further that she was a union

steward and that was her duty. Cochran and King

then spoke to Mr. Gerlach and asked him if he was go-

ing to give King her time card. He-said that he would

not until King came into his office and talked to him

in private. Cochran and King declined to accede to

the request for an interview with King without union

representation. They sat and waited in or near the

office for the remainder of the day. In the meantime

Cochran’s card was also ‘‘pulled’’ from the rack. (P.

2a-3a, 20a-21a, 60a-6la; A. 25-27, 127-128, 167.)

The next morning, Tuesday, October 14, Cochran and

King again went to Gerlach’s office. They asked him

if he was going to return King’s time card. Gerlach

again replied that he would not until King talked to

him in private. Cochran asked about her own card.

She was informed that she had been suspended for two

days for being away from her work station the day

before. King and Cochran left the plant. (P. 3a-4a,

21a, 6la; A. 28, 168.)

The next day, Wednesday, October 15, Mulford’s

two-day suspension ended. She went to Gerlach’s

office together with Cochran and King. They were met

by the Gerlachs. Mulford inquired as to the status of

Cochran and King. Mr. Gerlach replied that Cochran

LEANER KOH OTRAS SON EK, w PES ERE RRA TER MEI TR RR em SO oD GS SOARS EE A BURRIS RIDE SR

was still under suspension for another day and that he

would not give King her time card until she came into

the office and talked to him in private. Cochran and

King left. Mulford went to work. (P. 4a, 24a, 61a;

A. 28-29, 48-51, 169.)

The following day, Thursday, October 16, Cochran’s

two-day suspension expired. She, Mulford and King

went to the office and were again met by the Gerlachs.

Mrs. Gerlach gave Cochran her time ecard and she

went to work. Mrs. Gerlach then told King that Mr.

Gerlach wanted to see her in the office alone. King

asked, ‘‘With Delila [Mulford]?’’ Mr. Gerlach re-

sponded. He said, ‘‘No, not with Delila.’”” He added

that if King ‘‘went out the door’’—that is, again de-

clined to participate in a private interview—‘‘she was

finished.’’ King walked out. Mulford then asked if

she could go to work. Gerlach replied, “‘No. You’ve

abandoned your job. You’re finished.’”? (P. 4a, 24a,

61a; A. 15, 29-30, 38, 51, 131, 170.)

During the noon hour of the same day, October 16,

Cochran went to the office of Gerlach, Jr., and sought

to present written grievances to him on behalf of Mul-

ford, King, and herself. Gerlach, Jr., told her that he

did not have time ‘‘to fool with them damn things. ...

I’m leaving town.’’ Cochran laid the grievances on his

desk but Gerlach picked them up and threw them in

the trash. He then walked into the work area, pulled

Cochran’s time card, and told her, ‘‘you worked this

morning, but you’re not working this afternoon.”’

Cochran went to the office of Gerlach, Sr., and asked

if she had been fired. He responded, ‘‘Just go home.

You wanted to draw unemployment now go on and

draw it.’? Cochran left the plant. Later that day

Cochran telephoned Gerlach’s secretary and asked —

EE BE LOE LEO LAE LIS OL RIE LN, POEMS FAN SS LNAI GOGAT SATO ST REA IRE EP SS EO WN al Nt EOL RPI F ied 20 RN ee ag AAS YN NEY PA LOI

whether Gerlach wanted her to report for work the

next day. The secretary told her, ‘‘He said no.”

Cochran asked the secretary to ‘‘tell him that he can

reach me at my home phone when he needs me.’’

Cochran was never notified to come back. to work.

(P. 4a, 22a, 6la-62a; A. 31-33, 59, 67-68, 135.)

II. The Board’s Conclusions and Order

The Board’s conclusions divide into three related

parts.

1. The Board found that on October 16, 1969, the

Company discharged Catherine King because she had

refused to attend an interview at its request without

union representation in circumstances where she ‘‘had

reasonable grounds to believe that disciplinary action

might result from the Employer’s investigation of her

conduct”? (P. 4a, 7a). This finding confronted the

Board with the need to address the question of whether

or not statutory protection is available in ‘‘a situation

where an employee or his representative had been dis-

ciplined or discharged for requesting, or insisting on,

union representation in the course of an interview”’

in which the risk of discipline to the to-be-interviewed

employee reasonably existed (P. 5a). The Board con-

cluded that in such a situation ‘‘it is a serious viola-

tion of an employee’s individual right to be represented

by his union if he can only request or insist on such

representation under penalty of disciplinary action’’

(P. 6a). The Board explained that the employer was

free to forego the interview if he was unwilling to con-

duct the interview with the union representative

present, but that the employer was not free to coerce

the employee’s unrepresented attendance. The Board

stated the rationale in support of its conclusion as fol-

lows (P. 6a-7a) ;

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 situa-

tions 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 repre-

sentative’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 informa-

tion he had and without such additional facts as

might have been gleaned through the interview.

This seems to us to be the proper rule where,

as here, the interview, whether or not purely in-

vestigative, concerns a subject matter related to

disciplinary offenses. 4

The Board limited the employee’s right to be free

of coerced attendance at an interview without union

‘ representation to the situation where the employee has .

‘reasonable grounds to fear’’ that the outcome of the

interview may adversely affect his employment status

(P. 6a and n. 3). This qualification meshes the em-

ployee’s lack of need for protection where cause for

apprehension does not reasonably exist with the em-

ployer’s interest in operational flexibility. As the

Board stated, ‘‘We would not apply the rule to such

run-of-the mill shop-floor conversations as, for ex-

ample, the giving of instructions or training or needed

ieee sts e. Oe — enews -

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PLA

I ORIOLERS IS | EBLE LRA EIN NSAP PD eh BBY SE Ye pal ee se 2 PREETI TR ye ET

corrections of work techniques. In such cases there

cannot normally be any reasonable basis for an em-

ployee to fear that any adverse impact may result

from the interview, and thus we would then see no rea-

sonable basis for him to seek the assistance of his rep-

resentative’? (P. 7a). The Board later explicitly

confined the employee’s right to be free of coerced at-|

tendance at an interview without union representation

to the situation where the employee requests represen-

tation.* Finally, the Board adhered to its settled posi-

tion distinguishing between an investigatory interview

and a disciplinary interview. The Board found that

the requested interview in this case was investigatory, |

1 om AS NE

and pointed out that, (1) as here, at an investigatory })

interview of an employee, which is fact-gathering in

purpose, the employer has the option not to meet with

the union repressentative so long as he chooses to

forego the interview, while (2) at a disciplinary inter-

view of an employee, where the employee is to be dis-

ciplined or the decision to discipline him is to be

made, the employer has an indefeasible statutory bar-

gaining obligation to meet with the union representa-

tive (P. 5a).$

Accordingly, one member dissenting, the Board con-

cluded that ‘‘King had reasonable grounds to believe

that disciplinary action might result from the Em-

ployer’s investigation of her conduct. Under these

circumstances King reasonably requested union rep-

resentation. It is also clear that ... [the Company]

2 Mobil Oil Corporation, 196 NLRB 1052, n. 2 (1972), enforce-

ment denied, 482 F.2d 842 (C.A. 7, 1973)...

* The Trial Examiner found that the proposed interview with

King was disciplinary in purpose (P. 38a, 45a), but the Board acted

on the premise that the interview was investigatory (P. 5a-6a).

——— ee

discharged King for insisting on this right. There-

fore, we conclude that King’s discharge was in viola-

tion of Section 8(a)(1)’’ (P. Ta-8a).

2. The Board found that the Company suspended

shop chairlady Delila Mulford and assistant’ shop

chairlady Martha Cochran ‘‘for performing their duties

as union chairladies in seeking to represent King

..’’, and later discharged Mulford for ‘‘insisting on

representing King’’ (P. 8a). Accordingly, one mem-

ber dissenting, the Board concluded that, as the con-

duct constituted ‘“‘protected concerted activity,’’ the

suspensions and discharge ‘‘violated Section 8(a) (1)

of the Act’’ (P. 8a-9a).

3. The Board unanimously pas that the Com-

pany ‘‘discharged Cochran because she sought to en-

gage in a protected concerted union activity, filing

grievances on behalf of herself, Mulford, and King.

Thus her discharge was in violation of Section 8(a) (3)

and (1) of the Act’’ (P. 9a).

The order entered by the Board precisely encases

its conclusions. As to coerced participation of an

employee in an interview without union representation,

the Board ordered the Company to refrain from (P.

9a-10a) :

Disciplining any employee for requesting to be

represented by a labor organization at any inter-

view or meeting held with the employee where the

employee has reasonable grounds to believe that

the matters to be discussed may result in his being

the subject of disciplinary action.

* * *

Requiring, under threat of discipline, that any —

employee take part in an interview or meeting with-

out union representation, where such representa-

SEL LOIS 6 Li Ses NRA

tion has been requested by the employee and where

the employee has reasonable grounds to believe

that the matters to be discussed may result in his

being the subject of disciplinary action.

As to the efforts of the union representatives to fur-

nish their fellow-employee with the representation

asked of them, the Board ordered the Company to re-

frain from (P. 10a):

Discriminating against union chairladies for

seeking to represent employees at any meeting

held with an employee where the employee has

reasonable grounds to believe that the matters to

be discussed may result in his being the subject of

disciplinary action and the employee has requested

such representation.

As to the presentation of a grievance by a union rep-

resentative, the Board ordered the Company to re-

frain from (P. 10a) :

Discriminating against union chairladies for

seeking to file grievances.

Finally, the Board ordered the Company to offer re-

instatement to King, Mulford and Cochran, and to

make them whole for any loss of earnings sustained

by them because of their suspensions and discharges

(P. 55a). :

III. The Decision of the Court of Appeals

The Court of Appeals enforced that part of the

Board’s order pertaining to the discharge of Cochran

for ‘‘filing grievances qn behalf of herself, Mulford,

and King” (P. 62a). But it denied enforcement of

the remainder of the order on the ground that ‘‘King |

had no right to have a union representative present at

EBERLE ED VEL AL MONG LIAL NLD hs RE REL SLE LLL. HE I a el Tk ola 4 WES LAME ES ty OES REN Tama SAD PE AILS TRE

the requested meetings with her employer .. .’’ (P.

62a). It based its conclusion virtually wholly on its

reading of precedent (P. 63a-70a). In its view, while

there is ‘‘no doubt that employees have a right to union

representation after a grievance has been filed,’’ the

‘tissue here is whether that right may be extended under ,

the Act to require employers to permit an employee to

have union representation at interviews . .. whenever

the employee has reasonable grounds to believe that

disciplinary action might result from the employer’s

investigation’’ (P. 68a, n. 1). According to the Court

of Appeals, prohibition of coerced attendance at such

an interview rests on a ‘‘new theory as to the meaning

and application of the Act, and the extesr+of employees’

rights thereunder,’’ and implicates the Board in an

impermissible assertion of ‘‘ power to alter or rearrange

employer-employee relations to suit its every whim’’

(P. 70a).

On July 17, 1973, two days before the decision of the

Court of Appeals in this case, the Court of Appeals for

the Seventh Circuit reached a like conclusion upon the

same question.* In its view, while the right to bargain

for and to exert economic pressure to secure union rep-

resentation at an investigatory interview by contract

‘tis plainly guaranteed by §7 of the Act’’ (482 F.2d at

845), the statute does not by its own force confer the

right to union representation, for the ‘‘requested

Union representation at an investigatory interview is

clearly not the kind of ‘concerted activity’ with which

§ 7 is primarily concerned”’ (1d. at 847). Why it is not

is unexplained. The court simply relied on its percep-

tion of ‘‘precedent’’ and its unparticularized version of

* Mobil Corporation v. N.L.R.B., 482 F.2d 842 (C.A. 7, 1973).

OLN PENILE. eR RCTS ee ENL ERA RECENTER Sot

‘thistory’’ (id. at 847-848). It was moved to its conclu-

sion by apparent reluctance to embrace what it believed

to be a ‘novel .. . interpretation’’ which, as it saw it,

‘‘would have been recognized many years ago’’ were it

valid (tbid.).

On October 9, 1973, the Court of Appeals for the

Fifth Circuit joined the Fourth and Seventh Circuits

in rejecting the Board’s conclusion. N.L.R.B. v. J.

Weingarten, 485 F.2d 1135 (C.A. 5, 1973). Like the

other courts of appeals, it rested its view on its percep-

tion of precedent (id. at 1137-38), opining without

analysis ‘‘that an investigatory interview would be a

premature stage at which to invoke a requirement of

union representation in the absence of some showing

that the purpose of the interview was not merely to

elicit facts concerning employee conduct but to impose

disciplinary measures upon the employee so that griev-

ance hearings later on would merely put the seal on

the employer’s prejudgment”’ (id. at 1138). On April

29, 1974, this Court granted certiorari to review the

judgments in this case and Weingarten and set the two

‘‘for oral argument in tandem”’ (A. 200).

SUMMARY OF ARGUMENT

The question this case presents is whether the Na-

tional Labor Relations Act protects an employee from

compulsory attendance without union representation at

an interview which he reasonably believes may result in

his subjection to discipline. Entry into the question is

facilitated by a common premise. All grant that at or

after the imposition of discipline the employee is statu-

torily entitled to union representation to contest it. The |

question then is whether the employee is entitled to

PENRO E I REIT NL EMESIS AE IILETELLE DY EDGLIF OLESEN L LIA DELIELLVEND LEE IE NOES OO ER EE CL AA Ye LET

union representation in the predecisional stage when

the employer seeks to subject him to a compulsory in-

terview preparatory to its determination of whether or

not the employee merits discipline.

The employee’s need for the protection of union rep-

resentation is at least as exigent in the investigation

of his conduct by inquiry of him before the decision is

made as it is thereafter. For fright, inexperience, or

ignorance may expose him to unmerited discipline

which would be avoidable had he had the aid of knowl-

edgeable union representation at his interview. And

the employer himself might well reach a different deci-

sion if his own inquiry of the employee were informed -

by the competent contribution of the union represen-

tative. Furthermore, the purpose of an interview is

not confined to confirming or establishing the existence

or absence of blameworthy conduct. Questions in ex-

tenuation of the offense and of the appropriate extent

of discipline also require exploration.

Accordingly, what happens at the interview is always

significant, and often decisive, in determining whether

or not discipline is merited and in assessing the appro-

priate degree of punishment. To require postpone-

ment of union representation until after the decision is

reached is therefore to deny it at the critical predeci-

sional stage which may for all practical purposes be

conclusive of the outcome.

Compelling the employee’s subjection to such an in-

terview without the assistance of union representation

cannot be squared with the National Labor Relations

Act. For the employee is required to confront his em-

ployer alone and unaided when’ the entirety of the

‘statute is premised on eliminating just such individual

EBL D AEE Bw TU Rp NS I Pe BGS OL

} 16. J

Silla Its design is to establish the conditions of

equality by protecting recourse to collective action and

thereby to overcome the ‘‘relative weakness of the iso-

lated wage earner caught in the complex of modern

industrialism ....’” To require an employee to submit

to an interview which may lead to his discipline without

the aid of union representation is therefore to perpet-

uate the very inequality which the Act denounces and

to bar protected recourse to the very theans which the

Act safeguards as the way to overcome that inequality.

Accordingly, as the Board holds, ‘‘Such a dilution of

the employee’s right to act collectively to protect his

job interests is .. . unwarranted interference with his

‘riglit to insist on, concerted protection, rather than in-

_ dividual self-protection, against possible adverse em-

ployer action.”’ *

Recognition that an employee has a statutory right to

refuse to submit without union representation to an

interview in which the risk of discipline reasonably in-

heres harmonizes with actual industrial practiee. ‘‘An

essential part of any investigation is to give the em-

ployee affecte1 full opportunity to explain his ae-

tions.””* But a full opportunity, is significantly less

than full if the employee is without the aid of union

‘representation. Accordingly, ‘‘there is a well-estab-

lished current of arbitral authority sustaining the

right of such representation where theAituation is such

that the employee who is called in for interrogation has

5S. Rep. No. 573, 74th Cong., 1st Sess., 3 (1935).

' 6 Mobil Oil Corp.,.196 NLRB 1052 (1972), enforcement denied,

482 F.2d 842 ‘C.A. 7, 1973).

TSlichter, healy & Livernash, The — of Collective Bargain-

ing on —— 646 (1960).

( daicaliadatal ee OE EDN TPL OE SOGOU apf LORE SSAA R EG OR CON pH ERED LO ALGO 4 OE Nh

reasonable cause to anticipate that the interview will

result in the development of information which will be

utilized as the basis for disciplinary action against

him.’’* The participation of the union represeutative

in the interview does not convert it into an adversary

contest but rather enhances its usefulness by increasing

the likelihood of securing more accurate information

and a more informed interchange of views to the ad-

vautage of all. In general, therefore, the accepted view

is that ‘‘an employee is entitled to the presence of a

Committeeman at an investigatory interview if he re-

quests one and if the employee has reasonable grounds

to fear that the interview may be used to support disci-

plinary action against him.’’?*® ™

. There is no merit in the bases asserted to resist the

existence of a statutory right in the employee to refuse

to submit without union representation to an interview

which he reasonably fears may result in his discipline.

1. Protection of the employee from unrepresented at-

tendance at an interview of him depends upon his hav-

ing ‘‘reasonable grounds to believe that the matters to

be discussed may result in his being the subject of dis-

ciplinary action”’ (P. 9a). It is said that this standard

is objectionable because ‘‘only the employee’s subjec-

tive state of mind will presumably be examined, and

the violation will turn not on any objective considera-

tions but on the subjective state of mind of the em-

ployee’”’ (P. 12a-13a). It is enough to respond, as the

® Chevron Chemical Co., 60 LA 1066, 1071 (M.H. Merrill, 1973).

® Universal Oil Products Co., 60 LA 832, 834 (B. M. Shieber,

1973).

‘

OF LODE TOGA SELECT IE ALLE OLOILE GEM DIES SELES YH LEE ENE NNR ge: caret PEO IDO Me Oe TNL map AS,

Board does, that ‘‘ ‘ [reasonable ground’ will of course

be measured, as here, by objective standards under all

the circumstances of the case’’ (P. 6a, n. 3). It is a

contradiction in terms to assert that ‘‘ ‘reasonable

ground’ must be treated as a purely subjective matter”’

(ibid.).

2. It is said that protection from coerced attendance

without union representation at an-interview in which

the risk of discipline reasonably inheres is not conferred

by the Act but can be secured only by contract for which

the employees have a statutory right to bargain and

strike (supra, p. 13). Confinement of protection to con-

tract rests on ipse dizit alone. Union representation is

in its essence concerted activity for mutual aid or pro-

tection; safeguarding the worker’s refusal to confront

his employer in an adverse situation without union rep-

resentation is at the heart of the Act; and statutory

protection in this situation harmonizes with actual in-

dustrial practice. The protection which the statute con-

fers is of course often supplemented and refined by

contract, but the statutory character of the right is not

altered because of its contractual —- or re-

enforcement.

3. It is said that precedent belies the existence of the

statutory right (supra, pp. 13-14). But such preeedent

as is in point is unpersuasive; much that is asserted as

precedent is simply misunderstood; and the ossifying

role which is assigned to precedent is fundamentally

mistaken. The Board has simply drawn from the stat-

utory imperative “ ‘to give laborers opportunity to deal

on equality with their employer’’’*® the modest re-

10 Phelps Dodge Corp. v. N.L.R.B., 318 U.S. 177, 183 (1941),

quoting from American Stecl Foundries v. Tri-City Council, 257

U.S. 184, 209 (1921).

quirement that an employee shall be free from com-

pulsory attendance without union representation at an

interview which he reasonably believes may result in

his subjection to discipline. The Board has thus per-

formed its essential function of ‘‘translating into con-

ereteness’’ (Phelps Dodge Corp. v. N.L.R.B., 313 U.S.

177, 193 (1941) ) ‘‘the dominant purpose of the legisla-

tion’? (Republic Aviation Co. v. N.L.R.B., 324 U.S.

793, 798 (1945)). This is the very reason for the

Board’s creation, and nothing in precedent bars it

from the full discharge of the role for which it was

commissioned.

ARGUMENT

I. THE NATIONAL LABOR RELATIONS ACT PROTECTS AN

EMPLOYEE FROM COMPULSORY ATTENDANCE WITHOUT

UNION REPRESENTATION AT AN INTERVIEW WHICH HE

REASONABLY BELIEVES MAY RESULT IN HIS SUBJECTION

TO DISCIPLINE.

The question this case presents is whether the Na-

tional Labor Relatious Act protects an employee from"

compulsory attendance without union representation at

an interview which he reasonably believes may result

in his subjection to discipline. Entry into the question is

facilitated by a common premise. All grant that at or

after the imposition of discipline the employee is statu-

torily entitled to union representation to contest it. The

question then is whether the employee is entitled to

union representation in the predecisional stage when

the employer seeks to subject him to a compulsory

interview preparatory to its determination of whether

or not the employee merits discipline.

The employee’s need for the protection of union rep-

resentation is at least as exigent in the investigation of

his conduct by inquiry of him before the decision is

made as it is thereafter. For fright, inexperience, or

Ne re eon ae rete, . "

: PEE CHORALE EN eT RET a WITS CNY aera ane pie, gcoee . ss ae eae

ignorance may expose him to unmerited discipline

which would be avoidable had he had the aid of knowl-

edgeable union representation at his interview. And

the employer himself might well reach a different deci-

sion if his own inquiry of the employee were informed

by the competent contribution of the union representa-

tive. Furthermore, the purpose of an interview is not

confined to confirming or establishing the existence or

absence of blameworthy conduct. Questions in extenua-

tion of the offense and of the appropriate extent of

discipline also require exploration.

Accordingly, what happens at the interview is always

significant, and often decisive, in determining whether

ér not discipline is merited and in assessing the appro-

priate degree of punishment. To require postponement

of union representation until after the decision is

reached is therefore to deny it at the critical predeci-

sional stage which may for all practical purposes be

conclusive of the outcome.

Compelling the employee’s subjéction to such an in-

terview without the assistance of union representation

cannot be squared with the National Labor Relations

Act. For the employee is required to confront his em-

ployer alone and unaided when the entirety of the

statute is premised on eliminating just such individual

helplessness. Thus, the mischief which the Act identi-

fies is the ‘‘inequality of bargaining power between

employees ... and employers... .’’ (§ 1, 2d 1); the end

it seeks is ‘“‘restoring equality of bargaining power be-

tween employers and employees’”’ (§1, 3d 1); and the

means by which that goal is to be realized is through

‘‘protecting the exercise by workers of full freedom of

association . . . and designation of representatives of

their own choosing... for the purpose of... mutual aid

POPE LIANG sae pg oe PIM OARS POEL PEL ARTEL BOGE TLE MRIS IOP GLOLEBIS PROSE OR AN En pete eI Se HANS gE PS ant

SO SPN

or protection ...’’ (§1, 5th 1). The Act thus rests on

the old insight that ‘‘[a] single employee was helpless

in dealing with an employer’’, and that ‘‘[u]nion was

essential to give laborers opportunity to deal on equality

with their employer.’’”’ Its design is to establish the

conditions of equality by protecting recourse to collec-

tive action and thereby to overcome the ‘‘relative

weakness of the isolated wage earner caught in the com-

plex of modern industrialism ....’’”

To require an employee to submit to an interview

which may lead to his discipline without the aid of

union representation is therefore to perpetuate the very

inequality which the Act denounces and to bar protected

recourse to the very means which the Act safeguards as

the way to overcome that inequality. Accordingly, the

Board perceptively reached to the heart of the Act in

rejecting that basic contradiction (Mobil Oil Corp., 196

NLRB 1052 (1972), enforcement denied, 482 F.2d 842

(C.A. 7, 1973) ) :

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 en-

gage in concerted activity by seeking the assistance

of his statutory representative.if the employer

denies the employee’s request and compels the em-

ployee to appear unassisted at an interview which

may put his job security in jeopardy. Such a dilu-

11 American Steel Foundries v. Tri-City Council, 257 U.S. 184,

209 (1921).

12S. Rep. No. 573, 74th Cong., Ist Sess., 3 (1935).

RE EEE SORTS RN ROR I A i male ee nent ne

tion of the employee’s right to act collectively to

protect his job interests is, in our view, unwar-

ranted interference with his right to insist on

concerted protection, rather than individual self-

protection, against possible. adverse employer

action.

Inhospitality to this view simply reflects an attitude -

unattuned to the basic reach of this statute. Statutory

solicitude for the employee easily embraces protecting

him in his refusal to submit without union representa-

tion to an investigatory interview of his conduct in

which the risk of discipline reasonably inheres. And

the extent to which a contrary conclusion is alien to the

Act is exemplified by the decisions cited by the Seventh

Circuit to support the applicability in this case of the

view that an activity may ‘‘not in fact [be] protected’

though within the ‘‘literal reading of §7...’’ (482 F.2d _

at 846. For we are asked to look for guidance to such

unprotected activity as mutiny (Southern Steamship

Co. v. N.L.R.B., 316 U.S. 31 (1942) ), participation in a

violent sitdown strike (N.L.R.B. v. Fansteel Metallur-

gical Corp., 306 U.S. 240 (1939)), engagement in a

breach-of-cortract strike (N.L.R.B. v. Sands Mfg. Co.,

306 U.S. 352 (1932) ), and disparagement of the employ-

er’s product in circumstances akin to physical sabotage

(N.L.R.B. v. Local No. 1229, I.B.E.W., 346 U.S. 464

(1953) ) (482 F.2d at 846, n. 11). It is a measure of the

infelicity of the understanding of this statute that these

decisions should be invoked when the question at issue

is whether an employer can coerce an employee’s sub-

jection to an imerview without union representation in

circumstances where the employee reasonably fears that

he is exposed to the infliction of discipline. Given that

_ the Act has as ‘‘a primary purpose... to redress the

perceived imbalance of economic power between labor

Fur neety gf

aia ss

HPERIO LOM LE LIE TS OE NONE LEG RIAL OEE BE,

and management’? (American Ship Building Co. v.

N.L.R.B., 380 U.S. 300, 316 (1965) ), safeguarding the

employee from unrepresented confrontation with his

employer in this situation is within the natural protec-

tive ambit of the statute ‘‘ ‘read in the light of the mis-

chief to be corrected and the end to be attained’ ”’

(N.L.R.B. v. Hearst Publications, 322 U.S. 111, 124

(1944) ).

I. AN EMPLOYEE'S STATUTORY RIGHT TO REFUSE TO,

SUBMIT WITHOUT UNION REPRESENTATION TO AN INTER-

VIEW IN WHICH THE RISK OF DISCIPLINE REASONABLY

INHERES HARMONIZES WITH ACTUAL INDUSTRIAL

Recognition that an employee has a statutory right to

refuse to submit without *union-representation to an

interview in which the risk of discipline reasonably

inheres harmonizes with actual industrial practice. ‘‘ An

essential part of any investigation is to give the em-

ployee affecéed full opportunity to explain his ac-

tions.’’** But a full opportunity is significantly less

than full if the employee is without the aid of union

representation. Accordingly, ‘‘there is a well-established

current of arbitral authority sustaining the right of

such representation where the situation is such that the

employee who is called in for interrogation has reason-

able cause to anticipate that the interview will result in

the development of information which will be utilized

as the basis for disciplinary action against him.’’ * The

participation of the union representative in the inter-

view does not convert it into an adversary contest. but

rather enhances its usefulness by increasing the likeli-

18 Slichter, Healy & Livernash, The Impact of Collective Bargain-

ing on Management, 646 (1960).

4 Chevron Chemical Co., 60 LA 1066, 1071 (M.H. Merrill, 1973).

hood of securing more accurate information and a more

informed interchange of views to the advantage of all

(Independent Lock Co., 30 LA 744, 746 (J. W. Murphy,

1958) ) :

[Participation by the union representative] might

reasonably be designed to clarify the issues at this

first stage of the existence of a question, to bring

out the facts and the policies concerned at this

stage, 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 might 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 bar-

gaining 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 f:ith and seek fo discuss.

the question at this stage with as much intelligence

as they are capable of bringing to the problem.”

15 See also, Caterpillar Tractor Co., 44 LA 647, 651 (H. J.

Dworkin, probably 1965) :

The procedure . . . contemplates that the steward will ex-

ercise 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 man-

agement 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 avoid-

ance 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 inwolve differences of substantial merit. Whether

this objective is accomplished will depend on the good faith

of the parties, amd whether they are amenable to reason and

persuasion. aT)

Therefore, in general, the accepted view is that ‘‘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.’’ *°

Practice and the natural reach of the statute thus

mesh, and the convergence convincingly confirms the

rightness of the Board’s interpretation.

Ill, THE BASES ASSERTED TO DENY THE EXISTENCE OF A

STATUTORY RIGHT TO REFUSE TO SUBMIT WITHOUT

UNION REPRESENTATION TO AN INTERVIEW IN WHICH

THE RISK OF DISCIPLINE REASONABLY INHERES ARE

WITHOUT MERIT.

We turn now to consider the bases asserted to resist

the existence of a statutory right in the employee to

refuse to submit without union representation to an

interview which he reasonably fears may result in his

discipline.

A. The Claim Based on the Asserted Invalidity of the

“Reasonable Grounds” Standard.

Protection of the employee from unrepresented at-

tendance at an interview of him depends upon his hav-

ing ‘‘reasonable grounds to believe that the matters to

16 Universal Oil Products Co., 60 LA 832, 834 (B. M. Shieber,

1973). See also, Allied Paper Co., 53 LA 226 (J. F. Holly, 1969) ;

Pick-N-Pay Supermarkets, 52 LA 832 (R. W. Haughton, 1969);

Thrifty Drug Stores Co., 50 LA 1253, 1262 (C. A. Jones, 1968) ;

Waste king Universal Producis Co., 46 LA 283, 286 (J. D. Petree,

1966) ; Dallas Morning News, 40 LA 619, 623-624 (M. H. Rohman,

1963) ; The Arcrods Co., 39 LA 784, 788-789 (E. R. Teple, 1962) ;

Valley Iron Works, 33 LA 769, 771 (A. Anderson, 1960) ; Schlitz

Brewing Co., 33 LA 57, 60 (F. Meyers, 1959) ; Singer Mfg. Co., 28

LA 570 (S. L. Cahn, 1957); Braniff Airways, 27 LA 892 (J. S.

Williams, 1957); John Lucas & Co., 19 LA 344, 346-347 (T. J.

Reynolds, 1952).

be discussed may result in his being the subject of dis-

ciplinary action’”’ (P. 9a). It is said that this standard

is objectionable because ‘‘ only, the employee’s subjective

state of mind will presumably be examined, and the

violation will turn not on any objective considerations

but on the subjective state of mind of the employee’’

(P. 12a-13a). It is enough to respond, as the Board does,

that ‘‘ ‘ [rJeasonable ground’ will of course be measured,

as here, by objective standards under all the circum-

stances of the case’’ (P. 6a, n. 3). It is a contradiction

in terms to assert that ‘‘ ‘reasonable ground’ must be

treated as a purely subjective matter’’ (ibid.). Rea-

sonableness as a standard runs throughout the law and

examples could be endlessly multiplied. Thus, under

the terms of the National Labor Relations Act itself,

an employer is not relieved of responsibility for dis-

crimination against an employee ‘‘if he has reasonable

grounds for believing”’ that certain facts exist (§ 8(a)

(3)(A) and (B)), and preliminary @ijunctive relief

against certain conduct must be sought if ‘‘the officer

or regional attorney to whom the matter may be re-

ferred has reasonable cause to believe such charge is

true and that a complaint should issue. . .”” (§ 10(1),

emphasis supplied). The ‘‘reasonable grounds to be-

lieve’’ standard adopted by the Board in this case is

thus an unexceptionable criterion readily within the

mainstream of the law.

B. The Claim Based on Assertion That the Right May Be

Secured by Contract But Does Not Exist by Statute.

It is said that protection from coerced attendance

without union representation at an interview in which

the risk of discipline reasonably inheres is not conferred :

by the Act but can be secured only by contract for which

: §.

the employees have a statutory right to bargain and

strike (supra, p. 13). Confinement of protection to con-

tract rests on ipse dizit alone. Union representation is

in its essence concerted activity for mutual aid or pro-

tection; safeguarding the worker’s refusal to confront

his employer in an adverse situation without union rep-

resentation is at the heart of the Act; and statutory

protection in this situation harmonizes with actual in-

dustrial practice. The protection which the statute con-

fers is of course often supplemented and refined by

contract.” The substance of the statutory right may be

enhanced by particularized contractual definition of its

scope; realization of the statutory right may be fur-

thered by contractual specification of the procedural

means for asserting it; and incorporation of the statu-

tory right into the contraet performs the important

function of eliminating debate as to its existence by the

people on the factory floor who know their contract if

not the law. Accordingly, the contract may facilitate

vindication of the right, but it is the statute which

creates it. Thus, discrimination because of union mem-

bership or nonmembership is prohibited by 40 percent

of contracts, * but it can hardly be suggested that the

right which the contract protects is therefore not

statutory.”

17TDunau, Contractual Prohibition of Unfair Labor Practices:

Jurisdictional Problems, 57 Col. L. Rev. 52, 66-80 (1957).

18 Basic Patterns in Union Contracts, 95:2 (BNA, February

1971).

19 See, Alezander v. Gardner-Denver Co., 42 U.S.L.W. 4214, 4218

(S. Ct., Feb. 19, 1974); Arnold v. Carpenters District Council of

Jacksonville, 42 U.S.L.W. 4754 (S. Ct., May 20, 1974).

C. The Claim Based on Precedent

It is said that precedent belies the existence of the

statutory right (supra, pp. 13-14). But such precedent

as is in point is unpersuasive; much that is asserted as

precedent is simply misunderstood; and the ossifying

role which is assigned to precedent is fundamentally

mistaken.

1. Three decisions may be read as precedent adverse

to the proposition that the Act protects an employee

from coerced attendance without union representation

at an interview with his employer which he reasonably

fears may expose him to the risk of discipline. One is

au obscure and cryptic 1947 decision of a court of

appeals reversing a 1945 Board determination which is

itself unclear and equivocal.” The other two are 1964

summary affirmances by the Board of trial examiners’

decisions which are conclusory and unreasoned.”* The

search for the right reading of a statute should not

atrophy with the first judicial rejection of an adminis-

trative determination, nor with unexplained agency —

affirmances of two trial examiners’ decisions.

2. The second line of precedent, said to be contrary

to the Board’s interpretation, is simply misunderstood

and is not adverse at all. The Board’s settled position,

adhered to in this case, distinguishes between an investi-

gatory interview and a disciplinary interview: (i) as

here, the Board found that the requested interview was

investigatory, and at such a fact-gathering and explora-

tory interview the employer has the option not to meet

20 N.L.R.B. v. Ross Gear & Tool Co., 158 F.2d 607, 611-614 (C.A.

7, 1947), setting aside, 63 NLRB 1012, 1033-34 (1945).

21 Dobbs Houses, 145 NLRB 1565, 1570 (1964) ; Electric Motors

and Specialties, 149 NLRB 1432, 1440 (1964).

LAINE APTA Ay AM, IIS Te Seer appa J = BERD Olan

with the union representative so long as he chooses to

forego the interview with the employee; (#) in con-

trast, at a disciplinary interview of an employee, where

the employee is to be disciplined or the decision to dis-

cipline him is to be made, the employer has an’ inde-

feasible statutory bargaining obligation to meet with

the union representative.”

22 Cf., Texaco, Inc., 168 NLRB 361 (1967), enforcement denied,

408 F.2d 142 (C.A. 5,,1969), in which the Board found that 'co!-

lective bargaining was obligatory because the interview of the

employee was designed to support:a disciplinary decision against

him already made, with Jacobe-Pcarson Ford, 172 NLRB 594

(1968), in which the Board found that collective bargaining , was

not required because the interview of the employee was ‘‘ essentially

for the gathering of information’’ (id. at 595). The Court of Ap«

peals for the Fifth Circuit denied enforcement of the Board’s order

in Texaco, not because it disapproved of the requirement of collec-

tive bargaining at a disciplinary interview, but because in its view

the “‘evidence is overwhelming that the interview was investigatory

in nature. ...’’ Texaco Inc. y. N.L.R.B., 408 F.2d 142, 144 (C.A. 5,

1969). It therefore held that, ‘‘since the interview dealt only with

eliciting facts and not with the consequences of the facts revealed,

its subject matter was not within the scope of compulsory collective

bargaining.’’ 408 F.2d at 145.

In its post-T'exraco decisions the Board has been uniformly of the

view that collective bargaining is obligatory at a disciplinary inter-

view. National Can Corp., 200 NLRB No. 156, 82 LRRM 1096

(1972) ; see also the decision of the trial examiner in United Air-

craft Corp., 179 NLRB 935, 968-969 (1968), in which the merits of

this question were not reached by ‘the Board, 179 NLRB at 937-938

(1969), or the Court of Appeals, 440 F.2d 85, 88, 97-98 (C.A. 2,

1971).

In contrast, collective bargaining has not been required by the

Board at an investigatory interview, but in no post-Teraco case

until the present one has the Board been confronted with action by |

an employer seeking to coerce an employee’s unrepresented attend-

ance at an investigatory interview. See, in addition to the post-

Texaco cases previously cited in this note, Lafayette Radio Elec-

tronics, 194 NLRB 491 (1971) ; Illinois Bell Tel. Co., 192 NLRB

834 (1971) ; Texaco Inc., 179 NLRB 976 (1969) ; Wald Mfg. Co.,

176 NLRB 839, 846 (1969), affirmed on proceedings not, presenting

Pager wh. * _

It is this distinction which is misinterpreted. It is

argued that, since the employer’s statutory obligation

to meet with the union representative is confined to a

disciplinary interview of the employee, it necessarily

follows that the employer can coerce the unrepresented

attendance of an employee at an investigatory inter-

view of him. But the logic of this argument is quite ob-

viously fallacious. That the statute does not compel the

employer to meet with the union representative does

not mean that the statute allows the employer to compel

the employee’s submission to an interview without the

this question, 426 F. 2d 1328 (C.A. 6, 1970); Dayton Typographic.

Service, 176 NLRB 357 (1969) ; Chevron Of Co., 168 NLRB 574

. (1967).

Post-Tezaco, beginning with this case, the distinctive question

which has emerged is whether, although collective bargaining at at

investigatory interview is not required, the employer can neverthe-

less compel the employee’s unrepresented attendance, and the Board

hus held that the employee is statutorily safeguarded from such

' compulsion. Quality Mfg. Co., 195 NURB 197 (1972), enforcement

denied, 481 F.2d 1018 (C.A. 4, 1973), cert. granted, April 29, 1974

(A. 200); Mobil Oil Corp.,,196 NLRB 1052 (1972), enforeement

- denied, 482 F.2d 842 (C.A. 7, 1973); J. Weingarten, Inc., 202

NLRB No. 69, 82 LRRM 1559 (1973), enforcement denied, 485

F.2d 1135 (C.A. 5, 1973), cert. granted, April 29, 1974 (A. 200) ;

New York Telephone Co., 203 NLRB No. 46, 84 LRRM 1041 (1973).

The crux of the offense is coercion of an employee’s unrepresented .

attendance at an investigatory interview; the employer commits no

violation where it terminates ‘‘the interviews without further ado

when the employees involved refuse ... to answer any questions

without a union representative present.’ ” Western Electric Co., 205

NLRB No. 46, 84 LRRM 1041, 1042 (1973).

Finally, the result in one case turned on Chairman Miller's swing

view, which he alone has had occasion to express, that an em-

ployee’s freedom from unrepresented attendance at an investiga-

tory interview may be waived by the agreement of the union and

' employer. Western Electric Co., 198 NLRB No. 82, 80 LRRM 1705;

1707 (1972). No question of waiver is before this Court in either

this case or Weingarten. See, N.L.R.B. v. The Magnavox Co., 42

U.S.L,W. 4300 (S. Ct., 1974).

. .

. aadioain GORE POLLEN A IE ELEANOR oer por groy Te pamenes

EIT! SELES ND SES, SEIS DAES SEIT ca ONLI NEE MRS Re 5 a oe

union representative. Rather, each has equivalent free-

dom, the employer the liberty not to meet with the union

representative, and the employee the liberty not to

meet without the union representative. For example,

an employer may not discharge his unorganized em-

ployees who walk off the job in a body because he has

’ ignored their complaint about the lack of heat in the

plant. N.L.R.B. v. Washington Aluminum Co., 370

U.S. 9 (1962). Yet, since those same workers do not

have a statutory bargaining representative, the em-

ployer is under no obligation to meet and confer about

the cold in the plant.

In short, an employer is not free to coerce his em-

ployees in their exercise of a right protected by section

_ 7 simply because the employer is not’ under an addi-

tional statutory obligation to bargain. It is this simple

and basie distinction that the Board has perceived but

the courts miss. As the Board has stated, ‘‘while the

employer’s denial of ... a request [by an employee to

be represented by his union] may not derogate the

bargaining rights of the union, in violation of Section

8(a)(5), in the case of a purely investigatory inter-

view, this is not say either: (a) that the employer may

discipline the employee for demanding representation ;

or (b) that the employer may insist, by threatening to

discipline the employee’s representative, that the in-

terview be held without his presence’’ (P. 6a).

But were it true that the inexorable consequence of

an employer’s option not to meet with the union at an

investigatory interview is to free the employer to

coerce the employee’s unrepresented attendance at that

interview, the inquiry would not end. For the resulting

inequity—conjoining effacement of the union at the

on,

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employer’s will with the employee’s subjection at the

employer’s command to unrepresented confrontation—

would then compel examination of the validity of the

premise that the employer has no statutory obligation

to meet with the union at an investigatory interview of

the employee. The object of the interview is acquisition

of information as to the employee’s conduct. At stake

based on the information secured is the discharge, dis-

cipline, or exoneration of the employee. An employee’s

subjection to discharge or discipline is unquestionably

a mandatory bargaining matter.* The information on

which that decision is based is equally the subject of

mandatory disclosure to the union as the indispensable

adjunct of informed discussion.“ Accordingly, since

collective bargaining and divulgence of the information

are obligatory after-the-fact of decision, the question re-

duces to why the union should not as of right at the

employee’s request be a party to the development of the

information at the interview of the employee in ad-

vance of decision. Clearly, it should be. Inquiry of the

employee is designed to elicit information from him on

which his job security is dependent. The union as the

chosen representative is the employee’s natural pro-

tector in this process. Its mandatory participation is

easily within the definition of obligatory collective bar-

gaining defined by section 8(d) of the National Labor

Relations Act: ‘‘the performance of the mutual obliga-

tion of the employer and the representative of the em-

23 National Licorice Co. v. N.L.R.B., 309 U.S. 350, 360 (1940) ;

Inland Steel Co. v. N.L.R.B., 170 F.2d..247, 252 (C.A. 7, 1948),

cert. denied on this point, 336 U.S. 960 (1949).

24 N_D.R.B. vy. Acme Industrial Co., 385 U.S. 432 (1967) ; N.D.R.B.

v. Truitt Mfg. Co., 351 U.S. 149 (1956) ; Curtiss-Wright Corp. v.

N.L.R.B., 347 F.2d 61, 68-69 (C.A. 3, 1965).

ployees to meet at reasonable times and confer in good

faith with respect to wages, hours, and other terms and

conditions of employment... ..’’ Exposure of an em- .

ployee to discharge or discipline is surely within the

scope of ‘‘terms and conditions of employment,’’ and

an investigatory interview of that employee to adduce

facts pertaining to his expiants is surely an appropriate

occasion for the union’s discharge of its representa-

tional role and the employer’ s ‘‘performance”’ of its

reciprocal ‘‘obligation . . . to meet .. . and confer’’

with the union. To meet and confer at the investigatory

interview, in a common fact-gathering effort in advance

of decision and therefore unhampered by hardened

positions, is the stage of the process which is the nat-

ural place to begin fulfillment of the mutual obligation

of the union and the employer to treat with each other

on the subject.

In sum, the employer’s argument fails on two

grounds. First, it is fallacious to argue from the prem-

ise that the statute does not compel the employer to

meet with the union representative to the conclusion

_ that the statute therefore allows the employer to compel

the employee’s submission to an interview without the

union representative. Second, the premise of the argu-

ment is in any event unsound, for the statute does obli-

gate the employer to meet with the union at an investi-

gatory interview.

3. The role of precedent has in any event been fun-

damentally misconceived. Adjudication within the com-

mon law tradition is often tentative at the beginning,

with some backing and filling as the scope of the prob-

lem is better appreciated under the impress of con-

tinuing exposure to different manifestations of it, and

with the formulation of a definitive position necessarily

AOC L IGN, ok SP a Ht EI

deferred until the ripeness of time has revealed in full

dimension the considerations pertinent to the solution.

This is especially true of the administrative process

when it works well. ‘‘ ‘Cumulative experience’ begets

understanding and insight by which judgments... are

validated or qualified or invalidated. The constant proc-

. ess of trial and error, on a wider and fuller scale than

a single adversary litigation permits, differentiates per-

haps more than anything else the administrative from

the judicial process.’’ N.L.R.B. v. Seven-Up Bottling

Co., 344 U.S. 344, 349 (1953) ‘‘The nature of the prob-

lem, as revealed by unfolding variant situations, in-

evitably involves an evolutionary process for its ra-

tionale 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.’’ J.U.E. v. N.L.R.B., 366 U.S.

667, 674 (1961). To freeze development in the name of

precedent contradicts the genius of the process. ‘‘ ‘ Wis-

dom too often never comes, and so one ought not to

reject it merely because it comes late.’ ’’ Boys Markets

v. Retail Clerks Union, 398 U.S. 235, 255 (1970)

(Stewart, J., concurring).

This evolutional approach’ is especially fitting here

considering both the nature of this statute in its present

application and the particular problem it addresses in

this ease. ‘‘As a charter of freedom,’’ the National

Labor Relations Act, like the Sherman Antitrust Act,

‘thas a generality and adaptability comparable to that

found to be desirable in constitutional provisions.” ”

More specifically, ‘‘[l]egislation, both statutory and

25 Appalachian Coals v. United States, 288 U.S. 344, 359-360

(1933).

constitutional, is enacted, it is true, from an experience

of evils but its general language should not, therefore,

be necessarily confined to the form that evil had there-

tofore taken. Time works changes, brings into existence

new conditions and purposes. Therefore a principle to

be vital must be capable of wider application than tha

mischief which gave it birth.’ *

As presently pertinent, the principle at the heart of

the National Labor Relations Act is elimination of the

helplessness of the individual worker by according to

him the opportunity to attain equality through collec-

tive representation (supra, pp. 20-23). This principle

has direct applicability to the question this case poses.

The administration of discipline to control on-the-job

misconduct is a pervasive part of life in the industrial

community.” For the worker discharge because of a

claimed infraction ‘‘is ‘economic capital punishment’—

the maximum penalty the employer may assess against

the employee.’’ * It is not alone the loss of his job that «

the employee suffers; termination strips him of his

seniority, and concomitantly divests him of such bene-

fits as pension rights, promotional preference, and lay-

off protection normally dependent on length of service.

Discipline short of discharge is simply less severe pun-

26 Weems v. United States, 217 U.S. 349, 373 (1910), quoted in

Inland Steel Co. v. N.L.RB., 170 F.2d 247, 254 (C.A. 7, 1948), cert.

denied on this point, 336 U.S. 960 (1949), to support an expanding

reading of the subjects within the scope of mandatory bargaining.

_. *7E.g.,O. W. Phelps, Discipline and Discharge in the Unionized

Firm (1959) ; L. Stessin, Employee Discipline (1960) ; F. Elkouri

and E. A. Elkouri, How Arbitration Works, 610-666 (3d ed., 1973) ;

D. L. Jones, The Supervisor end the Disciplinary Process in a

Unionized Setting, 26 Personnel Administration 42 (1963).

28 Q. W. Phelps, supra, n. 27, at 28.

ishment which is different in the degree of injury but

not in the quality of the worker’s concern with it. For

the employer discipline is necessary to the maintenaice

of order and responsible conduct essential to produc-

tion. For both the employer and the worker substantive

’ and procedural fairness in the administration of dis-

cipline is indispensable. For the worker the need for

protection against unjust punishment is self-evident.

For the employer the need to refrain from unjust pun-

ishment is hardly less self-evident, for there is nothing

more likely to wrack the industrial community to the

detriment of the employer’s self-interest in production

and profitability than disciplinary unfairness.

_ Within this complex of basic and compatible interests

the Board has drawn from the statutory imperative

_ ** “to give laborers opportunity to deal on equality with

their employer’’’” the modest requirement that an

employee shall be free from compulsory attendance

without union representation at an interview which he

reasonably believes may result in his subjection to dis-

cipline. The Board has thus performed its essential

function of ‘‘translating into concreteness’’ (Phelps

Dodge Corp. v. N.L.R.B., 313 U.S. 177, 193 (1941))

‘the dominant purpose of the legislation’? (Republic

Aviation Co. v. N.L.R.B., 324 U.S. 793, 798 (1945) ). It

has fashioned a specific to reach an evil within the

range of mischief at which the statute is aimed. It has

reached a fair and reasoned judgment upon a question

within its competence and its answer is therefore en-

titled to stand. N.L.R.B. v. Erie Resistor Corp., 373 U.S.

221, 235-236 (1963).

29 Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177, 183 (1941),

quoting from American Steel Foundries v. Tri-City Council, 257

U.S. 184, 209 (1921).

ae Oe bk notes ER Ra

CONCLUSION

When all is said and done, the stark fact remains

that an employer has discharged an employee, and sus-

pended and discharged her fellow-employees who are

her union representatives, for no cause other than in-

sistence on union representation. Protection from this

raw exercise of economic power to squelch the mutual

aid which is at the heart of union representation is

within the plain unsophisticated reach of the National

Labor Relations Act. ‘‘In our increasingly dependent

society, in the context of an employment situation in

which collective action is the norm, it seems to be an

anomaly to see the individual not merely standing

alone, but being foreed to stand alone on matters inti-

mately related to his-or her economic existence.’ *

Accordingly, insofar as it denies enforcement of the

Board’s order, the judgment should be reversed and

the cause remanded to the Court of Appeals with direc-

tions to enforce the Board’s order in full.

Respectfully submitted,

Max ZIMNY

1710 Broadway

New York, New York 10019

BERNARD DUNAU

912 Dupont Circle Bldg., N.W.

Washington, D.C. 20036

BERNARD RUBENSTEIN

BERNARD P. JEWELER

10 Light Street

Baltimore, Maryland 21202

Attorneys for Petitioner.

June, 1974

30P—). W. Brodie, Union Representation and the Disciplinary In-

terview, 15 Bost. Col. Ind. Comm. L. Rev. 1, 49 (1973).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.