Amicus Curiae Brief — NLRB v. J. Weingarten, Inc.
Supreme Court brief1975
Ask Donna
What actually matters in this document.
Text
— - —— : oo a ee TS ini |
gs F — |
a Supreme Court of the United States
OCTOBER TERM, 1973.
No. 73-1363
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
VS. —
<n
J. WEINGARTEN, INC.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT.
No. 73-765
INTERNATIONAL LADIES’ GARMENT WORKERS’
UNION, UPPER SOUTH DEPARTMENT, AFL-CIO,
| Petitioner,
VS.
QUALITY MANUFACTURING COMPANY anp
NATIONAL LABOR RELATIONS BOARD.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT.
MOTION OF THE CHAMBER OF COMMERCE OF THE
UNITED STATES OF AMERICA FOR LEAVE TO
FILE BRIEF AMICUS CURIAE AND BRIEF
AMICUS CURIAE.
MILTON SMITH,
General Counsel,
RICHARD BERMAN,
Labor Relations Counsel, . -
Chamber of Commerce of the i
United States of America,
1615 H Street, N. W., JERRY KRONENBERG,
Washington, D. C. 20006, Borovsky, Ehrlich & Kronenberg,
120 South LaSalle Street,
Chicago, Illinois 60603,
Attorneys for the Amicus Curiae.
Of Counsel:
COLE, ZYLSTRA & RAYWID,
2011 Eye Street, N. W.,
Washington, D. C. 20006.
RE oe FR a, ee a |
—s
>
ra ioe Se
-
NER NR el Be
IN THE
Supreme Court of the Anited States
OcTOBER TERM, 1973.
No. 73-765.
INTERNATIONAL LADIES’ GARMENT WORKERS’
UNION, UPPER SOUTH DEPARTMENT, AFL-CIO,
Petitioner,
VS.
QUALITY MANUFACTURING COMPANY anpD
NATIONAL LABOR RELATIONS BOARD.
ON WRIT OF CERTIORARI TO THE UNITED STATES CCURT
OF APPEALS FOR THE FOURTH CIRCUIT.
MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE.
. “The Chamber of Commerce of the United States of America
respectfully moves, pursuant to Rule 42 of the Rules of this
Court for leave to file the attached brief amicus curiae in support
of the Employer, Quality Manufacturing Company.
This motion is directed only to the Quality case. With re-
spect to the case to be heard in tandem with Quality, National
Labor Relations Board v. J. Weingarten, Inc., both the Solicitor
(the Petitioner) and the Employer have consented to the Cham-
ber’s participation therein. In the Quality case, the Chamber
has received the Employer’s consent to participate.
Inasmuch as Weingarten and Quality present a common ques-
tion, the accompanying brief is directed. not only to the
Weingarten case, pursuant to the received consents, but also
is filed in the Quality case, contingent upon this Court’s granting
the Chamber’s motion to participate in that proceeding.
PELL LET PEE ARS REEL PS EE
i
i
3
xs
9
&
,
CALIBER NII ELLIS EEL IO TEED
The Chamber of Commerce of the United States of America
is a federation consisting of a membership of over} thirty-seven
hundred (3700) state and local chambers of commerce and
professional and trade associations, a direct business member-
ship in excess of thirty-eight thousand (38,000), and an under-
lying membership of approximately five million (5,000,000)
business firms and individuals. It is the largest association of
business and professional organizations in the United States.
In order to represent its members’ view on questions of im-
portance to their vital interests and to render such assistance as
it can to courts’ deliberations in such areas, the Chamber has
frequently participated as amicus curiae in a wide range of
significant labor relations matters before this Court and Courts
of Appeals. *
The instant proceeding, just as the companion Weingarten
case, is of particular concern to the Chamber’s members, as well
as to employers generally, since it involves a question of
theoretical significance in the administration of the National
Labor Relations Act which also has enormous practical im-
,portance in employers’ ability to manage their businesses
efficiently. The rule of law which the Board has applied in
this case reflects a view of the content and limits of Section 7
of the Labor Act which is both unprecedented and which
constitutes an impingement upon what has been considered a
legitimate exercise of management prerogatives. Thus, in de-
* E.g., N.L.R.B. Vv. Textron, Inc., .... US. ...., 85 LRRM
2945 (1974); Geduldig v. Aiello, et al., .... U.S. ...., 8 F.E.P.
Cases 97 (1974); Griggs v. Duke Power Company, 401 USS.
424 (1971); N.L.R.B. v. Granite State Joint Board, 409 U.S.
213, 34 L. Ed. 2d 422 (1972); Boy’s Markets v. Retail Clerks
Union, 398 U.S. 235 (1970); H. K. Porter Co. v. N.L.R.B. 397
U.S. 99 (1970); Sears Roebuck and Co. v. Carpet Layers, Local
419, 397 U.S. 655 (1970); Super Tire Engineering Co., et al. v.
McCorkle, et al., .... US. ...., 85 LRRM 2913 (April, 1974);
N.L.R.B. v. Mobil Oil Corp., 482 F. 2d 842 (1973); N.L.R.B. v.
Frank Visceglia and Vincent Visceglia t/a Peddie Buildings, ....
F. 2d ...., 86 LRRM 2541 (7A 3, 1974); Scott Hudgens v.
N.L.R..B., No. 73-3264 (CA 5, 1973).
w
vet
ee ee
Fe PE ROR E I TET OES TE ON TOME TES
PTE GREET PLES ELE BEE LIT
ae
3
termining the extent to which employees may insist upon union
representation during private interviews, with management, this
Court will determine not only the validity of a rule, but the
validity of the Board’s approach to the‘#fiterpretation of Sec-
tion 7. Similarly, the resolution of this question will govern,
in an important respect, management’s ability to secure the
information from its employees which it requires effectively to
manage its business. Unlike some other questions of com-
parable theoretical interest, the issue’ posed here is one which
confronts all employers, regardless of their size or the nature
of their businesses, and arises with frequency in the regular
course of their managerial responsibilities.
Accordingly, the practical significance of the issue presented
here, together with the implications of the Board’s interpreta-
tion of the statute and the resulting problems which are created
AE OE A ae pat pt OE
in the administration of the Act, impels the Chamber to submit’ ~~
its views for the consideration of this Court.
Inasmuch as the Chamber is filing in support of the Re-
spondent, Quality, it does not appear that the Petitioner has
been prejudiced by. the Chamber’s submission of its brief at
this time, Indeed, as stated, the Solicitor, the Petitioner in the
companion Weingarten case, similarly circumstanced with the
Petitioner in Quality, has expressly given such consent.
WHEREFORE, the Chamber respectfully urges the Court to
grant this Motion for leave to file the accompanying amicus
curiae brief. ‘
Respectfully submitted,
MILTON SMITH,
General Counsel,
RICHARD BERMAN,
Labor Relations Counsel,
Chamber of Commerce of the
United States of America,
1615 H Street, N. W., JERRY KRONENBERG,
Washington, D. C. 20006, Borovsky, Ehrlich & Kronenberg,
120 South LaSalle Street,
Chicago, Illinois 60603,
Attorneys for the Amicus Curiae.
Of Counsel:
COLE, ZYLSTRA &' "RAYWID,
2011 Eye ~~ N. W.,
Washington, D. Cc. 20006.
eo ee es
oo EE on oars arene aA ERO OAL IER GER ELLEN EOE EOL INE ELLIS NORE «REST EE
TABLE OF CONTENTS.
PAGE
Interest of the Amicus Curiae ...........-e+eeeeeee: 2
Summary of the Argument ...........-..-+.-- nen 2
A eT ee eee Pee Tee TOC e TT TET eT Tee >
The Board’s Recently Adopted Rule Entitling Employees
to Union Representation During Investigatory Interviews
with Management Personnel Is Contrary to the Design
and Objectives of the Act ...........eeeceeeeuees 5
A. The Board’s New Rule Reverses Twenty-Five Years
_ of Uniform Precedent and Contravenes Both Con-
gressional Intent and the Rationale of This Court’s
Textrot Dacia iin Cee gl ieee seins ses 6 5
B. The New Rule Is Illogical and Unworkable ...... 12
C. An Employee’s Request for Representation, at In-
vestigatory Interviews Involves a Personal Interest
and Not Protected, Concerted Action .......... 16
D. The Board’s Newly Adopted Rule Converts a Non-
Mandatory Subject of Bargaining Into an Unfair
Labor Practice and, Independently, Is Contrary to
Sound Policy and the Purposes of the Act ...... 19
Conclusion
LEENA SARL III AE REL IE INT OEE
BY RRORMO TNE THT
~
é
E
é
é
;
PETES
a
ap. gpany
a ter
SAINTE IT
ii Z
Montgomery Ward & Co., Inc., 146 NLRB 76 (1964)... 21
N.L.R.B. v. Exchange Parts Co., 375 U.S. 405 (1964)... 21
N.L.R.B. v. Neuhoff Bros., 376 F. 2d 372 (1967). ..... 21
N.L.R.B. v. Power Equipment Co., 313 F. 2d 438 (CA 6,
SORE nhs oc es 505s ee ERTS eed soar weee toy 21
N.L.R.B. v. Quality Manufacturing Company, 481 F. 2d
1018 (CA 4, 1973), denying enforcement of 195 NLRB
EE er aee BON RE ah oe OOS Pee err args wer yA MD
N.L.R.B. v. Ross Gear and Tool Co., 158 F. 2d 607 (CA
By ST he er oe eee is heb es 8a ak sd sian dans 6, 10, 18
Risk o, see, tee... US —.. ., 85 LRRM
Se iri eke neh s ib vevees nureerye rns »
N.L.R.B. v. Washington Aluminium, 370 U.S. 9 (1962). 18, 19
N.L.RB. v. J.’ Weingarten, Inc., 485-F. 2d 1135 (CA 5,
1973) denying enforcement of 202 NLRB No. 69. ..2, 7, 18
‘Redcor Corp., 166 NLRB 1013 (1967). ............. 21
Texaco, Inc., Houston Producing Div., 168 NLRB 361
(1967) enf. den. 408 F. 2d 142 (CA‘5, 1969). ..... 9
Texaco, Inc., Los Angeles Sales Terminal, 179 NLRB 976
ER A pc ekod ewes pakecce es dings Je seth he? 8
United Aircraft Corp. v. N.L.R.B., 440 F. 2d 85 (CA 2,
OF aie ies te bin 8d eee Eee ose ree e eK eee 21
Wald Manufacturing Company, 176 NLRB 839 (1969)
aff'd 426 F. 2d 1328 (CA 6, 1970). .............. 8
- Western Electric Co., 198 NLRB No. 82 (1972). ...... 23
Statutes.
National Labor Relations Act, Section 203(d). . se eeeee 23
Miscellaneous.
SR-2382, CCH NLRB Paragraph 11,991 (1962). ..... 6
/
BNI LILES EN DETONATE
iii
TABLE OF AUTHORITIES CITED.
Cases.
Abex Corp., 162 NLRB 328 (1966).......... asics. oe
Allied Chemical & Alkali Workers of America v. Pittsburgh
Pube Ciaes Co. 406 US. 197 CIBTT). pv cceciccscks 19
Blade-Tribune Publishing Co., 161 NLRB 1512 (1966). 21
Bon-R Reproductions, Inc. v. N.L.R.B., 309 F. 2d 898
ee EE ec eth axewarevevissy peer kabiles 21
Boys Markets Inc. v. Retail Clerks, 398 U. S. 235 (1970) 19
Central Hardware Co. v. N.L.R.B., 407 U.S. 539 (1972). 19
Chevron Oil Co., 158 NLRB 574 (1967). ........... 6,7
Collyer Insulated Wire, 192 NLRB No. 150, 77 LRRM
SUD SURFED eck does reel ee bicecke bee hbes «Xo 24
Dayton Typographic Service, 176 NLRB 357 (1969)... 8
Escobedo v. State of Illinois, 378 U.S. 478. ........... 10
Essex Wire Corp., 188 NLRB No. 59 (1971). ........ 21
General Industries Electronics Co., 146 NLRB 1139
COE oi os ow oe ted ed eee heer Rhee eae 21
General Industries Elec. Co., 152 NLRB 1029 (1965)... 21
racks, inc., 172 MLAB No. 253 CI9GB). 2. vccisanes 21
Illinois Bell Telephone, 192 NLRB No. 138, 78 LRRM
Dee ESOT E. hi ha 65 heb ore teu ins bc eeeveoeies 8
Indiana Gear Works v. N.L.R.B., 371 F. 2d 273, 276
CEN 5 Pico n se sehen ORR had a ewes nesd eds 18
Jacobe Pearson Ford, Inc., 172 NLRB No. 84 (1968)... 8
Keifer & Keifer v. R. F. C., 306 U.S. 381 ............ 12
LaFayette Radio Electronics, 194-NLRB No. 77, 78
SE CO OEE De it eo erie seeriwrerirrrs 8,9
Mobil Oil Corp., 196 NLRB No. 144 (1972) enforcement
denied 482 F. 2d 842 (CA 7, 1973). ............ 15, 18
SLEPT et ee Oey * Pees a se
3
5
:
¢
|
” TANS AE I, Se TR LEA 40
IN THE
Supreme Court of the Gnited States
OCTOBER TERM, 1974.
No. 73-1363.
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
vs.
J. WEINGARTEN, INC.
a
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT.
No. 73-765.
~
INTERNATIONAL LADIES’ GARMENT WORKERS’
UNION, UPPER SOUTH DEPARTMENT, AFL-CIO,
P, titioner,
vs.
QUALITY MANUFACTURING COMPANY AND
NATIONAL LABOR RELATIONS BOARD.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
_APPEALS FOR THE FOURTH CIRCUIT.
/-
BRIEF OF THE CHAMBER OF COMMERCE OF THE
UNITED STATES OF AMERICA AS
AMICUS CURIAE.
ae Aaa Ne
oy ‘y
utienesr OF THE AMICUS CURIAE.
The interest of the Chamber is set out in the foregoing
Motion for leave to file this amicus curiae brief.
SUMMARY OF THE ARGUMENT.
These cases present the common issue of whether the National
Labor Relations Act requires ah employer to permit an em-
ployee to have union represenfation at a fact finding investi-
gatory interview if the employee has reasonable grounds to
. believe that disciplinary action might result from the em-
ployer’s investigation. The courts below,’ reversing holdings
by the Labor Board, answered the presented question in the
negative. The Chamber contends that the decisions of the
courts below should be affirmed by this Court inasmuch as the
rule promulgated by the Board’s decisions below is illogical, un-
workable, and inconsistent with congressional intent and the de-
sign and objectives of the Labor Act.
This Court’s rationale in N.L.R.B. v. Textron, Inc., °..........
3h. ae , 85 LRRM 2945 (1974) endorses the Chamber’s
position. There, this Court held that the Labor Board cannot
summarily overturn years of uniform statutory construction, and
contrary to congressional intent, read a more restrictive mean-
ing into the Act. Contrary to Textron’s reasoning, the Board
in its Quality decision below enunciated a rule governing em-
ployees’ entitlement to union representation during interviews
1. N.L.R.B. v. Quality Manufacturing Company, 481 F. 2d
1018 (CA 4, 1973), denying enforcement of 195 NLRB 197;
N.L.R.B. v. J. Weingarten, Inc., 485 F. 2d 1135 (CA 5, 1973),
denying enforcement of 202 NLRB No. 69.
(ESE
+ SN Gay tt eT at Be oe
with management which reversed established precedent, con-
travened congressional intent and the scheme of the Act and
imposed new restrictions upon employers. Thus, until its de-
cision in Quality below, the Board with court approval had
consistently held that the statutory rights of employees did not
include the right of union representation in pre-disciplinary in-
vestigatory interviews with management. In addition to over-
turning years of uniform statutory constructicn, the Board’s
new rule imposes new and rigorous restrictions upon employers
as they attempt to elicit information necessary to maintain
efficient operations. The presence of union representatives in
fact-finding interviews will frustrate and may well foreclose
the flow of formato that is required by employers if they
are to make/reasonable decisions with respect, inter alia, to
plant security, employee discipline, and work flow.
It is apparent that the Board’s long-standing rule concerning
the right to representation during investigatory interviews, rather
than ae rule it enunciated in Quality and followed in Wein-
garten, is consonant with the statute’s design and with con-
gressional purpose. The former rule had existed since at least
1947. Had Congress believed that the Board’s construction of
the Act constituted a misconception of congressional intent, it
could have effected a correction either in the subsequent Taft-
Hartley Amendments or in the Amendments of 1959. Further-
more, the new rule has manifold internal infirmities, which make
it unworkable and consequently an unreliable guide to conduct
as employers embark upon their many and varied interviews
with their employees. It should not be presumed that a rule
whose application is fraught with uncertainty is a manifestation
of Congress’s intent absent legislative expression endorsing such
a result. Such a pronouncement is, of course, not here present.
It follows from the foregoing that the Board’s new rule must
be rejected pursuant to this Court’s reasoning in the analogous
Textron case. The Board below has attempted to accomplish
what this Court has proscribed in Textron: it has promulgated
aisha cet eaeaaiaet EEE EEE EE eee
— —
a rule which overturned a history of uniform statutory construc-
tion, infused new restrictions upon employers as they engage in
daily, normal business operations and acted in a manner not
contemplated by Congress and contrary to the design of the Act.
Independently, the novel construction of the Act forged by
the Board below must be repudiated since it does not involve
concerted activity which is recognized and protected by the
Act. That is, an employee’s request for representation at an
investigatory interview involves merely an attempt to secure his
personal interest and therefore does not constitute concerted and
protected action. Thus, it has been judicially recognized that in
order to prove activity is concerted under Section 7, it is neces-
sary to demonstrate that the activity was for the purpose of
preparing for group action to correct a grievance or a complaint.
During a pre-disciplinary fact finding interview, no management
' decision affecting an*employee’s working conditions has trans-
pired, and therefore there has been no determination that could
serve as the basis for a grievance. It follows that a request for
representation during an investigatory interview is not made to
prepare for group action to correct a grievance or complaint.
Consequently, such a request is not activity that is recognized to
be concerted and protected by the Act.
Furthermore, since under established Board precedents a
union has no right to demand that it be present at such inter-
views, the nature of the interests to be protected at the interview
cannot be considered to be collective or concerted. Otherwise,
since a union is charged to preuect collective interests, an
employer would be statutorily compelled to permit its presence.
It is evident from the foregoing that the objectives of the Act
will not be served by recognizing the validity of the Board’s new
rule, and, accordingly, this Court is urged to repudiate it and
affirm the decisions of the courts below.
PRR AL LLIB PALME LEER BE DIN EAL A PEER RE
~~ a Se Saath Les Gee ORS ~ 2th ete BOG i BEA tee re Re OR OTE OR eileen on)
Aa eee ead SS =
ITO A SUR EH PE
ARGUMENT.
THE BOARD’S RECENTLY ADOPTED RULE ENTITLING
& EMPLOYEES TO UNION REPRESENTATION DURING IN-
VESTIGATORY ERVIEWS WITH MANAGEMENT PER-
SONNEL IS CONFRARY TO THE DESIGN AND OBJEC-
TIVES OF THE ACT.
A. The Board’s New Rule Reverses Twenty-five Years of
Uniform Precedent and Contravenes Both Congressional
Intent and the Rationale of This Court’s Textron Decision.
This Court in its Textron’ decision has held explicitly, and
the Chamber is contending, that the National Labor Relations
Board cannot summarily rever ears of uniform statutory
construction and, contrary to se eae intent, read a new
and more restrictive meaning into the Act.
It follows from the rationale underpinning Textron that the
_ Board has no warrant to hold, as it did below, that an employer
must permit an employee to have union representation during a
fact finding, predisciplinary interview whenever the employee
thinks he has reasonable ground to fear that disciplinary action
may result from the employer’s investigation. The holdings by
the Board below, analogous to the Board’s Textron decision,
represent a dramatic reversal of years of consistent statutory con-
struction, severely restrict an employer's ability to secure infor-
mation necessary to conduct his business and contravene Con-
gressional intent.* .
_
2. N.L.R.B. v. Textron, Inc., supra.
3. As the court below in Quality aptly and correctly observed,
“never has it been thought, as the Board would hold here [in
Quality], that [an employce’s statutory rights] require an em-
ployer to permit an employee to have a union representative ~
present whenever the employee ‘has reasonable ground to fear
that the interview will adversely affect his continued employ-
ment, or even his working conditions’.” 481 F. 2d 1018, at 1024.
GEES 5 SLY LAP REGRESS LEE LE LEDER IESE IEB EPIL LORIE ESE EATER EY PE AEE LTO SON i EPR si a ptspe i
a
From at least the time the Seventh Circuit decided N. L. R. B.
v. Ross Gear and Tool Co.,* in January, 1947, until the Board’s
decision in Quality below in January, 1972, the Board had ad-
hered to the proposition that employees were not statutorily en-
titled to the presence of their union representatives at manage-
ment interviews held to gather information er investigate facts;
employers were held neither to violate Section 8(a) (1) nor 8(a)
(5) by refusing to permit the union to be present until after
some decision was made which could become subject to the
parties’ grievance and arbitration machinery.
Thus, in an administrative decision of the General Counsel’s
office in 1962,° the General Counsel refused to issue a Com-
plaint in a situation where an employer prevented a union steward
from attending an interview whose purpose was to verify an
employee’s excuse for his absence from work. According to the
General Counsel. the statute created no duty on the employer
to permit union attendance at employee interviews until the em-
ployer’s investigation was completed. While this decision did not
come before the Board since no violation of law was found
warranting further proceedings, the Board did have an op-
portunity to confront the issue shortly thereafter in Chevron
Oil Co.® For purposes of the instant proceedings, Chevron Oil
was a particularly instructive case since the General Counsel
had apparently altered his view of the law as expressed in the
1962 administrative decision, and urged upon the Board: the
contention that an employer violates Section 8(a)(1) of the
Act by depriving an employee of union representation at a
management interview when there exists a possibility of discipline
resulting therefrom. The Board rejected the General Counsel’s
arguments and restated its conviction that the Act conferred no
such asserted right during the performance of management's
investigatory role. Not only did the Board precisely reject the
4. 158 F. 2d 607 (CA 7, 1947).
5. SR-2382, CCH NLRB Paragraph 11,991 (1962).
6. 168 NLRB 574 (1967).
7
position there which it now asserts in the cases below, but it did
so specifically in the context of an 8(a) (1) charge.
In the instant proceedings the Board, in its brief in Weingarten
pages 24-26, seeks to distinguish its former contrary decisions,
such as Chevron Oil, by urging that it merely affirmed decisions
of law judges without any “considered analysis” and by asserting
that the prior decisions involved the question of unions’ rights to
be present at employee interviews pursuant to the bargaining
rights conferred in Section 8(a)(5), rather than, as here, em-
ployees’ right to representation as conferred in Section 7 and ,
violated in Section 8(a)(1). The Board’s attempt to justify
its new rule by “confessing” that for over 25 years it merely
rubber-stamped law judges’ decisions without analysis is startling
on its face. The Board is charged with deciding unfair labor
practice coftroversies arising under the Act. (Section 10(c)).
Accordingly, it is ‘presumed that the Board obeys its congres-
sional mandate. Therefore, a summary affirmance of a law
judge’s decision must necessarily constitute complete agreement
with that decision and its rationale. If the Board at its whim
may deny the precedential value of any decision where it has
affirmed a judge’s findings without significant comment, a
wholesale reevaluation of what may constitute Board precedent
will be necessary. This will result in chaos for those involved in
the labor-management field and produce a justifiable erosion of
public confidence in administrative tribunals. The Board’s ex-
planation therefore must fall because it is foreign to our admin-
istrative system and to sound labor policy.
In the Weingarten case then, the'Board’s effort to mask the
inconsistency of its current position is unavailing. Indeed, the
majority of the present Board ignored the teaching of its prede-
cessor which, in Chevron Oil, adopted the following conclusion
and rationale of the Law Judge:
“To be sure, Section 7 of the Act guarantees to em-
ployees the right to be represented by their collective bar-
StS, hana 02 BS AFP ALLELE CELE LL DEE NC ITE INT
8
gaining representative in all areas pertaining to their terms
ard conditions of employment, and the penalty of suspen-
sion from work for alleged insubordination most assuredly
is encompassed within those terms and conditions. . . . But
this is not to say that a bargaining agent must be privy
to management councils, or that represented employees
must be shielded by that agent from company inquiries,
on each and every occasion when management embarks
upon an investigation to ascertain whether plant discipline
has been breached. . . . I fail to perceive how the exclusion
of Union Steward Kosmyna from those meetings intruded
upon the rights of employees or affected the Union’s repre-
sentative status’. . [or how] Respondent evaded any statu-
tory obligation by refusing to entertain the presence of a
union representative during the discussion of an alleged
rule infraction when no definite adverse action has as yet
been decided upon by Respondent.”* (Emphasis added).
In an unbroken line of cases, the Board has adhered to
the holding and rationale of Chevron Oil. The resulting rule
was adopted and followed in Jacobe Pearson Ford, Inc.,* Dayton
Typographic Service,” Wald Manufacturing Company,’® Texaco,
Inc. Los Angeles Sales Terminal," Illinois Bell Telephone,'*
and LaFayette Radio Electronics.* In all of these cases the
Board rejected claims that employees had a statutory entitlement
to the presence of union representation during investigatory inter-
views with management. :
In an instance in which the Board held the presence of such
representation to be proper, the predicate for that result was
the Board's conclusion that the purpose of the interview was
not investigatory, but was rather to develop evidence, following
7. 168 NLRB at 578.
8. 172 NLRB No. 84 (1968).
9. 176 NLRB 357 (1969).
10. 176 NLRB 839 (1969), aff'd 426 F. 2d 1328 (CA 6 1970).
11. 179 NLRB 976 (1969).
12. 192 NLRB No. 138, 78 LRRM 1109 (1971).
13. 194 NLRB No. 77, 78 LRRM 1693 (1971).
AEM ENDS aE LER 2
9
a decision to impose discipline, to support the previously reached
determination."
Each of the cases decided after Chevron Oil cited that case
as governing authority. Each of them, therefore, may be con-
sidered to have adopted Chevron’s determination that neither
Section 7 nor Section 8(a)(5) constituted statutory warrant for
the union’s presence during pre-discipline interviews; nothing
stated by the Board in any of them suggested any disposition to
reach any other conclusion with respect to either the Section 7
or Section 8(a)(5) aspects of the Chevron decision.
A particularly instructive case is LaFayette Radio Electronics,
supra. This case, was decided only six weeks before the Board
determined, in Quality; to overturn the accepted and long-
established rule which was created by the decisions in the series
of cases discussed above. In LaFayette, the Board adopted the
Law Judge’s summary of the law as it had been forged during
at least the previous twenty-five years: ;
“. . . the principle appears to have evolved that the right
to union representation exists if the purpose of the meeting
between the employee and management is disciplinary; but
that the union has no right to be present if the purpose of
the meeting is fact finding or investigatory.”
It should be noted that the principle thus articulated is framed
in terms of the employee's “right to union representation” and
hence involves an interpretation of the content of Section 7 of
the Act; it does not represent, as the Board’s attempted distinc-
tion between its new and former rule would have it, a focus only
14. Texaco, Inc., Houston Producing Div., 168 NLRB 361
(1967), enf. den. 408 F. 2d 142 (CA 5, 1969), on the ground that
-employees’ right to union representation does not extend to all deal-
ings with the employer which may ultimately affect employment
conditions.
15. 194 NLRB 491, 492. It is evident that the Judge con-
sidered the principle involved to be based upon Board precedent even
though the Board may simply may affirmed previous Law Judges’
decisions.
2
z
&
~
=
=
DESEO TARO LDS Ke ott ed mnie , Wt he: “
10
on the union's role as bargaining agent under Section 8(a) (5).
Similarly of significance in LaFayette is the fact that the General
Counsel had sought from the Board a ruling granting employees
the right to union representation at all interviews with manage-
ment, whether investigatory or not, from which a decision to
effect any discipline might emerge. This effort, which appeared
to seek a rule analogous to that of this Court’s right-to-counsel
rule in Escobedo v. State of Illinois,“ was firmly rejected by
; the Board in favor of the above-quoted then existing and estab-
; lished legal standard.
The foregoing discussion of the evolution of the Board’s rules
: gives rise to two conclusions. First, the Board’s former rule
3 concerning employees’ right to union representation during
i investiPatory interviews stems at least from the time the Seventh
Circuit decided Ross-Gear & Tool Co. in early 1947. That deci-
sion predated the Taft-Hartley amendments to the Labor Act.
Had Congress believed that rule to constitute a misconception of ©
its statutory design, it could have effected a correction either in
: the subsequent Taft-Hartley amendments or in the amendments
j of 1959 or at any other time. On the contrary, despite so long a
history of uniform application of that rule there is no evidence
of Congressional displeasure with it. It would appear fair to
conclude, therefore, that the rule fairly expressed Congress’
intent.’”
5) sppbaeetccur eaataeciale oe cers
SPAR RI an tia ena NA THO Be
Second, where an administrative rule of law has become
Fi accepted and established over a long period of time, without
objection from the legislature body whose enactment gave rise
to it, the courts should be reluctant to accept a reversal of that
pie in the absence of a change in the statute. The justification of
such a reversal should constitute a heavy burden for the adminis-
trative body which seeks to impose it. In the instant cases, the
Board has offered no explanation for its action. As the court
below in Quality observed, the Board has failed to articulate
reasons for reversing years of uniform statutory interpretation.
16. 378 U. S. 478. ,
: 17. In addition, part B advances arguments that demonstrate
that the new rule is contrary to congressional intent. .
pe RETIN
a
SIE aeRO
Sat Qi as
BAS Soagy a
. jos: gin testa nae aetna iets ryemney ine pennies arate NT ga T Sh ae OE UIE AROSE
ge WPM Ico RAI PES OEE OIO SIE OPES : *
te pete A fogs 8 te oh SPAIN ALARA EEA vey
11
If the Board is to enlist judicial approval of its new interpretation
of the Act, it must demonstrate by compeling argument that
its novel construction is an accurate reflection of. Congressional -
design. The Board’s failure to advance such arguments requires
the rejection of its new interpretation of the Act.
Furthermore, as demonstrated above, the Board’s effort to
distinguish between Section 7 and Section 8(a) (5) rights in order
to avoid the appearance of conflict is not supported by its own
prior decisions. Nor is it rational to accept such a distinction-
after-the-fact. If all those employees who were held unentitled
to union representation over the past years could have achieved
a different legal result merely by arguing their cases differently
or relying on a different Section of the same statute/then surely
that point would have been made by the Board in some manner
in at least one of its prior decisions. That po such observation was
made is ample proof that in the instant cage the Board is indeed
advancing a new and inconsistent interpretation of the statute.
It cannot be doubted that this novel interpretation of the
Act will significantly restrict employers in their efforts to as-
certain facts necessary to make required management decisions
with respect, inter alia, to plant security and work rules. As will
be discussed in more detail in part D infra, the presence of union
Officials at fact finding interviews will frustrate, if not entirely
foreclose, the flow of information that management needs to
efficiently operate its business. Thus, similar to its attempt in
Textron, the Board below has imposed new restrictions upon
employers, contrary to congressional intent. In Textron the
Board had determined that all managerial employees are
covered by the Labor Act, except those whose participation
in a union would create a conflict of interest with their
job responsibilities. This Court, rejecting the Board’s hold-
ing, reasoned that it conflicted with long-standing Board prec-
edent which had excluded all managerial employees from the
Act’s coverage. This Court further recognized that the Board’s
decision diminished management’s necessary control over those
persons who formulated his policy: and clearly contravened
So anc, |
PERN
: !
ESP ELIE LER LE POLSEL DELL N LEME MEME AEE IGEN SELVES POMEL LES SRSA AESIRTI SISTEM SE ta ei ala teen ialll
12
congressional intent. Thus, the effect of the Board’s rule below
is similar to the result that the Board sought to accomplish in |
Textron. Both below and in Textron the Board overturned long-
standing precedent, infused new restrictions upon employers as
“they operated their busi s and contravened congressional
intent and the Act’s design.
In view of the rationale underlying. Textron and the arguments
urged above and hereinafter, the Board’s novel construction of
the Act must be rejected.
B. The New Rule Is Illogical and Unworkable. -
A fundamental ‘premise of sound legislative construction is
that Congress should not be presumed to have intended, or
/~ subsequently to approve, a statutory interpretation which is
logically and philosophically unsound.’* The subject rule, as an
interpretation by the Board of the latitude of Sections 7 and
8(a)(1) of the Act, is the product of such an interpretation.
This rule,—which provides that an employee who is called in
for any interview or discussion by management and who re-
quests union representation may not lawfully be denied such
representation so long as the employee has reasonable grounds
to fear the interview may adversely affect his working condi-
tions,—contains serious infirmities. |
Initially, a finding that the employer, by denying such a re-
quest, has violated the law is a function of what the employee
says and what the emplovee may suspect. Thus, curiously, the
employer’s violation of law may have nothing whatever to do
with what fe does or believes or intends, with whether his
object is anti-union or wholly altruistic. Since what an em-
ployee believes to be the employer’s intention or desire may
bear no relationship to fact,—as, for example, when the em-
ployee hears plant rumors which are both untrue and unknown
to the employer, a violation of this rule by an employer may
18. Keifer & Keifer v. R. F.,C., 306 U. S. 381.
13
result from an incorrect belief by-the employee in the presence
of non-existent intentions all unknown to and unknowable by
the violating employer.’
Just as this rule focuses on the conduct and attitudes of the
wrong persons, it also emphasizes the importance of the wrong
variables. For the portion of the rule which makes reference
to an employee’s “reasonable grounds” to fear an adverse con-
sequence of an interview with management presents its own
serious problems. What is objectively “reasonable” has no
necessary relationship to reality. The need to determine in
every instance of the application of this rule whether a given
employee reacted with objective reasonableness to the totality
of circumstances surrounding his situation will inevitably in-
volve inquiry into the private and hence subjective views of
each employee. What is “reasonable” to any given individual
depends not only on his knowledge and assessment of external
circumstances, but also on his knowledge of his personal situa-
tion and the relationship of the one to the other. Thus, for ex-
ample, whether an employee has a reasonable basis to fear disci-
pline as a result of interviews concerning damage to company
property must depend both upon the employee’s awarness of the
existence of damage and of his own responsibility or participa-
tion. Neither the employer nor the Board can really be sure of
the employee’s basis for reasonable fear in the absence of his
confession of guilt. On what basis, therefore, is the employer to
judge whether he must, under the rule, permit union represen-
tation? If the mere fact that an interview is to be conducted on
a matter warranting discipline is sufficient to cause reasonable
fear on the part of anyone interviewed, then the ‘tule’s focus
19. Of course, the employer may obviate his own difficulties
with this rule by ceasing to hold any employee interviews at all or
by permitting the union to be present at all times, thus forsaking
either the benefits to be derived from such meetings or an important
as of management’s right effectively and, where necessary, con-
fidentially to run its own administrative affairs in a non-discrimina-
tory manner. A => compel such a choice should not easily
be attributed to gress.
14
on the concept of reasonable fear is a superfluity; the rule, in
that case, should merely require union representation at all
interviews. The Board does not go that far, of course, and thus
creates an impossible dilemma: the mere fact of the interview
alone does not give rise to an objective and reasonable fear of
adverse consequences, and the extent to which\the employee has
a genuine basis for fear, through discovery of his own culpa-
bility, cannot be known by the employer prior to the interview.
However, it is frequently at that tinfe that he must make his
decision whether to allow union representation. Thus, at least
as a general proposition, the rule cannot be rationally applied
on its own terms.
Indeed, the difficulty in applying it under any circumstances
can be demonstrated from an example cited by the Board itself,
in its Quality decision below, as an illustration of a clear case
when an employee would have no basis for seeking union
representation. The Board majority suggests that an inter-
view for the purpose of giving an empioyee “needed cor-
rections of work techniques” would not tend to produce a rea-
sonable fear of adverse consequences and the Board would not,
therefore, require an employer to permit union representation.
However, there are several problems inherent in this illustration.
First, the Board’s rule does not appear to require the employer to
disclose the precise purpose of the interview in advance, so that
an employee called to an interview may have no basis for know-
ing how “fearful” he should be of its consequences. May he
‘ compel the employer to state the exact purpose of a requested
interview before he,agrees to attend? Should he with impunity
be allowed to refuse to attend without such disclosure by his
employer? If an employee has’ committed a serious infraction
of the plant’s work rules and is called by management to an
interview whose purpose is not stated to him but, in fact, in-
volves another matter offering no jeopardy whatever, what are
his rights? On any objective standard, the employee has reason
to fear the consequences of the interview whereas the employer,
CS. MOLT EEE TOGGLES | FR REINA NE A BET RNB 2 Oey cote
having read the Board’s Quality décision, knows that the
Board believes there to be “no reasonable basis for [the em-
ployee] to seek the assistance of his representative” in the
interview which the employer wishes to-conduct. And, finally,
it is submitted that reasonable men can differ even with respect
to the substance of the illpstration the Beard majority cites as
being clear. For it appears to the amicus curiae that.even were
an employee to be informed prior to a requested interview that
its purpose was to correct his work techniques, he might well
have justifiable fear that the poor work performance which gave
rise to the need for the interview might also result in a transfer
to another job or another shift or to a probationary status pend-
ing improvement in his performance. A poor: worker inter-
viewed about his poor work techniques may thus have a more
substantial basis for a reasonable fear of adverse consequences
than another employee who is interviewed about a theft he did
not commit, yet the Board would presumably require the re-
quested presence of union representation only in the latter situa-
tion.
The Board's decision in Mobil Oil Corp., 196 NLRB No. 144
(1972), enforcement denied 482 F. 2d 842 (CA 7, 1973),
raising the same issue as is presented here, illuminates the weak-
nesses in its new rule. In that case employees Burnett, Smith,
Mathews and Hill were interviewed by the same management
personnel, for the same purpose, in the same manner and re-
ceived the same discipline for the same offense. Yet the dis-
charges of the first two were deemed unlawful because they
‘sought representation prior to or during their interviews, while
the discharges of the remaining two were considered proper
because they made no such request. However, the only em-
ployee of the four who was willing to sign a statement was Smith
who asserted his innocence throughout. He, presumably, had
no basis for fear or appeared to have none insofar as such
conduct evidences his state of mind. Yet his discharge was un-
lawful. Employee Mathews, who refused to sign any such state-
Cael
ha
bs
».
&
bv
x
#
2
i
i
-
e
PEMA CEI EE TG SLL ONE IESE
16
ment but failed to seek the union’s presence was considered
permissibly discharged, although his conduct would appear to
suggest a more substantial basis for fear of discipline by manage-
ment. The implication of the Board’s decision in that case,is that
establishment of the existence of the required reasonable fear of
adverse consequences may reduce simply to whether the em-
ployee seeks the union’s presence and assistance. The disposition
of Smith’s case suggests that conclusion. This may well be the
only rational way to apply the rule, but it is nonetheless a dis-
tortion of the terms of the rule itself. A rule of law whose
sensible enforcement involves ignoring some of its own require-
ments should not be construed to comport with Congress’ intent
or design.
C. An Employee’s Request for Representation at Investigatory
Interviews Involves a Personal Interest and Not Protected,
Concerted Action.
The National Labor Relations Act protects employees’
concerted activity. An employee acting for himself and who
pursues interests which are personal and not shared by his fel-
low members of the bargaining unit does not, therefore, engage
in conduct which the Act was designed to protect. It is sub-
mitted that a request for union representation at an investi-
gatory interview seeks personal protection unallied to a protected
‘group or collective interest.
The body of law traced in the preceding sections of this brief
established, at a minimum, that a union as a functioning entity
has no right to demand to be present at investigatory interviews
of its members; that is, an employer would not violate Section
8(a)(5) of the Act by rejecting the union’s demand.”° Since
unions are charged with the duty of representing their members
20. The Board has not quarrelled with this conclusion. Rather,
the Board adopts it, arguing that the representational claim involved
here stems from employees’ rights under Section 7 and not from
unions’ rights under Section 8(a)(5).
17
in matters in their collective interest, it appears to follow that in
the described line of cases the Board has already determined
that union representation at investigatory interviews is not re-
quired by any such collective interest; otherwise employers
surely would be compelled to permit the union’s presence.
In order to justify its findings below, the Board asks this
Court to adopt a conceptually untenable position: an employee
would be held to have a right to union. representation under the
language of Section 7, which guarantees him jpe right to engage
in “concerted activities for the purposes of collective bargaining
or other mutual aid or protection”, while the union’s statutory
inability to insist on being present negates the existence of a col-
lective bargaining purpose or concerted activity or any employee
effort to secure mutual aid. The Board cannot ineve it both ways.
If the interests or potential jeopardy of an employee at an in-
vestigatory interview do not rise to the level which would permit
his union representatives to involve themselves in his protection,
then, as a matter of logic and statutory design, the employee
himself cannot compel the union’s representation to protect the
very same interests. The extent of the interests to be protected,
the need for protection and the nature of the services which the
union can provide its members is the same whether the per- ©
formance of those services is sought to be invoked by the union
itself or by an employee whom it represents.
It follows, therefore, that the described representation sought
by an employee must constitute an effort to secure an individual —
or personal employment right which unions do not protect,
rather than a concerted one which they do protect. Whatever
may be the merit or wisdom in an eventual statutory recognition
of such rights in employment situations, it is clear that the Act
currently neither recognizes nor protects such alleged rights.
Unless Congress moves to confer them by amendment, the Act
may not be interpreted to cover them.
Accordingly, during investigatory interviews with manage-
ment,—a period prior to the engagement of the union’s au-
Stew MEA &
18
thority to act on behalf of a member's interests,—requests for
representation involve unconcerted individual conduct, unpro-
tected by the Act. Mobil Oil Corporation v. N.L.R.B., 482 F.
2d 842 (CA 7, 1973); N.L.R.B. v. J. Weingarten, Inc., supra.
Furthermore, as the Seventh Circuit held, in order to prove
concerted activity under Section 7, “it is. necessary to demon-
strate {at least] that the activity was for the purpose of inducing
or preparing for group action to correct a grievance or a
complaint. Indiana Gear Works v. N.L.R.B., 371 F. 2d 273,
- 276 (1967). This decision is ‘consonant with the earlier
decision in that circuit, N.L.R.B. v. Ross Gear & Tool Co.,
158 F. 2d 607 (1947). Ross held that there is no statutory
right to representation at interviews not involving the presenta-
tion of a grievance. The Board’s decisions in these causes below
are clearly inconsistent with Indiana Gear and with Ross--That
is, during a fact finding interview no management decision
affecting an employee’s working conditions has been made, and
therefore there has been no decision that could serve as the basis
of a grievance. It follows that a request for representation during
an investigatory interview cannot have been made to prepare
for group action to correct a grievance; the tequest is accordingly
not “concerted activity” as that term has been traditionally used
when speaking of employee rights under the Act.!
21. The Petitioner’s reliance on N.L.R.B. v. Washington Alu-
minium (370 U.S. 9 (1962)) is wholly misplaced. There, the
activity—walking off the job—was traditiona! concerted activity
- initially and, therefore, entitled to the Act’s protection. Here, in
contrast, the request for representation during investigatory inter-
views does not involve concerted conduct, and accordingly, cannot
be protected by the Act.
Thus, as demonstrated in detail above, an employee’s request for
representation during an investigatory interview is not designed to-
prepare for group action to correct a grievance, since no manage-
ment decision to discipline the employee has been made. Further-
more, since under Board law a~ynion has no right to demand that
it be present at a fact finding interview, the nature of the interests
to be protected and the need for protection at such an interview
is not collective or concerted. Otherwise, since a union is charged
with protecting these interests, an employer would be compelled
= CREEPERS LIRIAS SIE DOPELE SILT IY E LIE ELE ANGE ELLIE ELLE LE PES
SES RSE 2 RES ¢ r
EN _— SE LOA EPO ELLE LL LOL II IONE OPE Fae i cog ae
19
D. The Board’s Newly Adopted Rule Converts a Non-
Mandatory Subject of Bargaining Into an Unfair Labor
Practice and, Independently, Is Contrary to Sound Policy
and the Purposes of the Act.
A principal policy objective of the National Labor Relations
Act is to effect a balance between employees’ right to act in
concert for their mutual protection and employers’ right to
operate and manage their businesses effectively and without in-
terference.** The challenged rule of law which the Board has
applied to these cases creates an unnecessary and harmful im-
balance between these competing rights because it interferes
with employers’ ability to secure needed information while ac-
cording to employees rights which are not required for the
furtherance and protection of their legitimate interests.
by the Act to permit its presence. For these reasons, the request for
representation necessarily involves only non-concerted, unprotected
conduct and Washington Aluminium is therefore inapposite.
Washington Aluminium is not applicable for another and inde-
pendent reason. In that case there were at issue two separate and
distinct duties to the involved employees: a duty to bargain with
those employees; a duty not to discipline them. Each of these
duties existed independently from the other and each was enforced
by a specific section of the Act. Consequently, an employer might
breach one of these independent duties but not the other, as in
fact occurred in Washington Aluminium, and thus violate one statu-
‘tory provision but not the other.
Here, in contrast, there is at issue only a single duty: whether
an employer has a duty to employees to permit them to have
union representation during investigatory interviews with manage-
ment. Whatever the ultimate resolution of the issue in this case,
Washington Aluminium is not authority for the Petitioner’s con-
tentions.
22. Boys Markets, Inc. v. Retail Clerks, 398 U. S. 235 (1970);
Central Hardware Co. v. N. L. R. B., 407 U. S. 539 (1972). Sce
also Allied Chemical & Alkali Workers of America v. Pittsburgh
Plate Glass Co., 404 U. S. 157 (1971), in which this Court stated
that managerial judgments which threaten employees’ jobs are not
necessarily subject to bargaining: “Other considerations, such as the
effect on the employer's freedom to do business, may be equally
important.” 30 L. Ed. 2d at 358, n. 19. (Emphasis added.)
awe a onal
20
The effective, efficient management of a business will fre-
quently require a company to engage in investigatory interviews.
Management's opportunity to make reasonable and appropriate
decisions with respect to numerous areas of its legitimate con-
cern, whether plant security, formulation and adherence to rules
and employee discipline, or problems of work flow, are subject to
its right to secure reliable information from employees. Were the
availability of that information to be curtailéd, a company’s ability
intelligently to make such decisions would severely be inhibited.
Yet the presence of union agents at every investigatory - inter-
view from which any employee, however mistakenly, feared some
adverse consequence would inevitably result in such a curtail-
ment of information. For the union agent’s representation of an
employee would likely take the form of a prohibition on giving
any information at all; this would be the clearest means for as-
suring that nothing would be said or revealed of possible harm.
Whether the union representative would recommend a total or
only partial refusal to cooperate is immaterial. The effect of
either course would tend to deprive management of essential
data unavailable from any alternative source. Similarly, man-
agement frequently requires information from its employees
promptly. If each request by management must be preceded
by a series of negotiations with the employee and his union as to
the nature of the interview, the areas of possible jeopardy and
the employee’s right to union representation, a form of industrial
chaos is invited,
Whereas the consequence of according judicial approval to
the rule urged by the Board would surely be to retard the flow
of information needed by management to carry out its obliga-
tion to run its business efficiently, the protections which would
thereby be accorded to empioyees exceed their reasonable re-
quirements. Where contractual grievance and arbitration pro-
visions exist, the substance of any adverse impact on employees
resulting from investigatory interviews becomes subject to full re-
view. It is true, of course, that an employee’s right with impunity
<*
“|
21
to restrict management from obtaining information may result in
management’s inability to sustain the imposition of discipline
and thus obviate employees’ need to invoke the grievance-
arbitration machinery. While this would likely be one effect of
the judicial approval of the position urged by the Board below,
not even the Board has contended that Section 7 of the Act
should be read to insulate employees from the consequences
either of their improper conduct or of any conduct unrelated to
union or other statutorily protected activity. It is sufficient pro-
tection of an employee’s legitimate interests to afford him re-
course to his contractual remedies, as earnestly and actively
pursued by his collective bargaining representatives.
Where no such contractual protections exist, the provisions of
the National Labor Relations Act afford relief and redress from
any improper management conduct in connection with investi-
gatory interviews.** The Board has established a series of rules
protecting employees from management interviews which trench
on their statutory rights under Section 7. In addition to the
familiar general prohibitions against threats and promises of
benefit in connection with employees’ collective preference and
activity,** the Board, in a much litigated area of its jurisdic-
tion, has adopted rules specifically governing the isolated ques-
tioning and interviewing of employees.” The Board has always
23. Such statutory guarantees also exist where employees are
covered by the terms of a collective bargaining agreement. In those
circumstances, the further protections contained in the Board’s pro-
posed rule are doubly unwarranted.
24. See, eg., N. L. R. B. v. Exchange Parts Co., 375 U. S.
405 (1964); N. L. R. B. v. Neuhoff Bros., 376 F. 2d 372 (1967);
N. L. R. B. v. Power Equipment Co., 313 F. 2d 438 (CA 6, 1963);
General Industries Electronics Co., 146 NLRB 1139 (1964).
25. Essex Wire Corp., 188 NLRB No. 59 (1971); Heck’s Inc.,
172 NLRB No. 255 (1968); Redcor Corp., 166 NLRB 1013
(1967); Blade-Tribune Publishing Co., 161 NLRB 1512 (1966);
General Industries Elec. Co., 152 NLRB 1029 (1965); Montgomery
Ward & Co., Inc., 146 NLRB 76 (1964); United Aircraft Corp. v.
N. L. R. B., 440 F. 2d 85 (CA 2, 1971); Bon-R Reproductions, Inc.
v. N. L. R. B., 309 F. 2d 898 (CA 2, 1962).
a
:
2
Ge
ies
2
‘
é
.
e
&
a
5
&
NOR ME REB ESM
Dae Dt LA ALI FO LDL DIED LS TOME A IAL 1 RD
22
focused strongly on the protection of employees’ rights, as, for
example, in rendering unlawful questioning which places an
employee in the position of acting as an informer regarding the
protected conduct of his fellow employees.”®
The foregoing discussion leads to two independent conclu-
sions. First, the Board’s challenged rule in actuality properly
constitutes a non-mandatory subject of bargaining under the
rationale of this Court in Pittsburgh Plate Glass Co., supra. This
Court there held that unless a subject will “settle an aspect of the
relationship between the employer and the employees” and unless
its impact on their working conditions is significant and not
merely “speculative,” the employer is under no duty to bargain
and may act unilaterally with respect to that subject. In the
instant case, for the reasons cited in Ross Gear and Tool Co.
and its progeny, no employee interest or right warrants or per-
mits a union’s involvement until there exists some decision by
management which could serve as the basis for a grievance.
The Board itself has taken the view that unions have no role to
play, pursuant to the bargaining rights granted them in Section
8(a)(5) of the Act, during investigatory interviews. It follows
that if no union response is appropriate, or if such a response is
premature, then there is not involved an issue which will “settle
an aspect of the [parties’] relationship”. When, in addition,
there exists only a “speculative” need for the union’s involve-
ment, as during investigatory interviews where no decision has
* been made substantially affecting any employee’s working con-
ditions, then there is clearly satisfied ihe Mllresseas for the
existence of a non-mandatory bargaining subject. This is par-
ticularly true where, as here, there also exist important man-
agement interests requiring unilateral action. It is submitted that
if the union’s presence during purely investigatory interviews is
not a mandatory subject of bargaining, then management’s re-
fusal to permit such a presence cannot constitute an unfair
“labor practice. Of course, the parties. may choose to negotiate
26. Abex Corp., 162 NLRB 328 (1966).
oR,
a ay
23
the subject, as in Western Electric Co., 198 NLRB No. 82
(1972), and thus become bound to their contractual commit-
ments. However, absent such a voluntary act, there exists no
right whose denial gives rise to unlawful conduct.
Independently of the question wheiher a union’s presence at
purely investigatory interviews constitutes a non-mandatory
bargaining subject, the same considerations urged on behalf of
that result also support the conclusion that as a matter of sound
policy the rule involved herein be rejected by this Court as
effecting an unnecessary imbalance between management’s
legitimate interests and employees’ legitimate needs.
Thus, available contractual and statutory remedies are more
than adequate to protect employees from the invasion by em-
ployers of their legitimate interests during investigatory intcr-
views. Since the information derived from such interviews is
essential to employers’ ability to manage, and since twenty-five
years of experience demonstrates the sufficiency-of the Board’s
former rule in safeguarding the interests of all parties, the Board’s
current effort to amend that rule should be judicially rejected.
In addition to causing an imbalance in the proper resolution
of conflicting interests, the Board’s newly adopted rule is incon-
sistent with Section 203(d) of the Labor Act and subsequent
developments in Board law which implemented that Section.
Section 203(d), in pertinent part, provides as follows:
“Final adjustment by a method agreed upon by the parties
is hereby declared to be the desirable method for settle-
ment of grievance disputes arising over the application or
interpretation of an existing collective bargaining agree-
ment.”
In the instant cases the parties have, through negotiation, agreed
to final and binding arbitration to adjust disputes such as oc-
curred in these cases. It would appear that adherence to the
Congressional will codified in Section 203(d) would dictate that
the Board leave to the parties’ agreed contractual procedures
the resolution of their respective rights in this area. The Board’s
ni ee a |
sh |
PREC +
24
earlier decision in Western Electric, supra, indicated the Board’s
disposition to do so. The body of law which the Board has
evolved as a consequence of its decision in Collyer Insulated
Wire," in which the Board announced its intention to defer
to the parties’ mutually chosen contractual remedies, con-
stituted a similar instance in which the Board gave effect to the
legislative mandate contained in Section 203(d). Therefore,
application by the Board in these cases of its current interpreta-
tion of. Section 7 ignores the parties’ agreement, violates Section
203(d) and conflicts with its own decisions in Western Electric
and Collyer.
While in the cases below, for reasons urged supra, the Board
may not alter long-standing precedents and now require an
employer t6 permit union representation during investigatory
interviews, there exists an independent reason for this Court to
repudiate these Board decisions. In Quality the Board has en-
gaged in the meritricious practice of retroactively imposing its
new rule so that an employer’s conduct, lawful before the is-
suance of that decision pursuant to rules then in effect, was
rendered illegal because of that decision. This practice must be
discouraged by this Court if the administrative process is to
enjoy the respect and esteem necessary for it to function properly.
Accordingly, and apart from all other matters relating to the
legitimacy of the rule the Board would impose in these cases,
this Court is urged to reject the Board’s attempt to convert
retroactively into unlawful conduct efforts to observe existing
rules which were lawful n pursued.
27. 192 NLRB No. 150, 77 LRRM 1931 (1971).
.
f
Deir etches
25
—*
U
SAOESE US
CONCLUSION.
For the reasons stated herein, together with these raised by
the employers, this Court is urged to declare that the rule of law
adopted by the Board and challenged here is the product of an
impermissible construction of the Act, and to affirm the decisions
of the courts below.
Respectfully submitted,
MILTON SMITH,
General Counsel,
RICHARD BERMAN,
Labor Relations Counsel,
Chamber of Commerce of the
' United States of America,
1615 H Street, N. W., JERRY KRONENBERG,
Washington, D. C. 20006, Borovsky, Ehrlich & Kronenberg,
120 South LaSalle Street,
Chicago, Illinois 60603,
Attorneys for the Amicus Curiae.
Of Counsel:
COLE, ZYLSTRA & RAYWID,
2011 Eye Street, N. W.,
Washington, D. C. 20006.
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.