Baton Rouge Water Works Co.

National Labor Relations Board - Board Decisions

Dec 14, 1979

246 N.L.R.B. 995 (N.L.R.B. 1979)

BAFO()N ROti(;l WAIER WORKS (OMPANY
Baton Rouge Water Works Company and Office and
Professional Employees International Union, IA)cal
428, AFI,-CIO. Case 15 CA 6820
December 14. 1979
DECISION AND ORDER
Upon a charge filed on March 23. 1978. by Office
and Professional Employees International Union. L.o-
cal 428, AFL CIO, herein called the Union, the Gen-
eral Counsel of the National Labor Relations Board.
by the Acting Regional Director for Region 15, issued
a complaint and notice of hearing on May 1. 1978,
against Baton Rouge Water Works Company. herein
called Respondent. The complaint alleges that Re-
spondent violated Section 8(a)(1) of the National a-
bor Relations Act, as amended, b refusing to allow
employee Deborah S. Achord to have union represen-
tation, pursuant to her request, at an interview which
the employee reasonably believed would result in dis-
ciplinary action against her, and by thereafter con-
tinuing to conduct the interview with Achord in the
absence of a union representative.
On August 14. 1978, Respondent, the Union, and
the General Counsel filed a motion to transfer pro-
ceeding to the Board and a stipulation of facts. The
parties waived a hearing and the issuance of a deci-
sion by an administrative law judge, and submitted
the case directly to the Board for findings of fact.
conclusions of law, and decision. The parties also
agreed that, in addition to their formal stipulation.
the entire record before the Board should consist of
the charge, complaint and notice of hearing, Respon-
dent's answer, and Attachment A, the governing col-
lective-bargaining agreement between Respondent
and the Union.
On September 25, 1978, the Board issued an order
granting the parties' motion, approving the stipula-
tion, and transferring the proceeding to the Board.
Thereafter, both Respondent and the General Coun-
sel filed briefs.
Upon the basis of the entire record in this case, the
Board makes the following:
FINDINS ()F FA( I
I. IIE BUSINESS OF HE EMPLOYER
Respondent Baton Rouge Water Works Company
is a Louisiana corporation engaged in the business of
supplying water to residential, commercial, and in-
dustrial consumers. During the past calendar year.
which period is representative of Respondent's busi-
ness operations, Respondent received revenues in ex-
cess of $250,000 and received oods valued in excess
of $50.000. which goods were shipped directly to its
tacilitv in Louisiana from points outside the State of
I.ouisiana. Accordingly, we find that Respondent is
engaged in commerce within the meaning of Section
2(6) and (7) of the Act, and that it will effectuate the
policies of the Act to assert jurisdiction herein.
II. rie I.ABOR OR(;ANIZATION INVOI.VEI)
The parties stipulated, and we find. that the Union
is a labor organization within the meaning of Section
2(5) of the Act.
It. IHE AI.I.E(iGnD UNFAIR ABOR PRAC(TI(CES
A. Background and F'acts
Employee Deborah Achord began her employment
on or about November 21. 1977. in the general office
department of Respondent's facility. According to the
governing collective-bargaining agreement between
Respondent and the Union. which is the exclusive
bargaining representative of certain of' Respondent's
employees, including Achord. she was classified as a
probationary employee tr the first 120 days of her
employment.
During the first week of March 1978.'1 Gail Miller.
Achord's supervisor, reported to the manager of the
general office department, Virginia Bush, that Achord
was not performing her duties satisfactorily. Bush
agreed with Miller's assessment of Achord's perform-
ance. Miller and Bush then conveyed their opinions
to Woodie Braud, assistant vice president of customer
services, who told them to decide whether to retain
Achord in Respondent's employ. Soon thereafter,
Miller reported to Robert Johnson, assistant vice
president and assistant secretary, that Achord's pro-
bationary period was almost over, that Achord's
work was currently unsatisfactory, and that Miller
would observe in the near future whether Achord's
performance improved.
On March 14. Miller advised Bush that Achord
was not "working out" and that she should be dis-
charged. Bush agreed. Miller and Bush then told
Braud and Johnson of their decision, and they de-
cided that Achord should be discharged on Friday.
March 17. Miller then filled out a discharge form.
On March 17, Miller called Achord into an office at
Respondent's facility and told her that she had been
called in because "things were not working out."
Miller told Achord that she felt it would be in the
Company's best interest if that was Achord's last day
of work. Achord asked if Miller was trying to tell her
that she was fired. Miller restated that she felt it was
in Achord's and the Company's best interest if that
I 411 dates herealter are in 1978
246 NLRB No. 161
995
I)t('ISIONS OF NATII)NAL ABOR RELATIONS BOARI)
was her last day of work. Achord protested that the
discharge was unfair and requested the presence of a
union representative. Miller stated that it was her be-
lief that Achord was not entitled to union representa-
tion because of her probationary status. In a tele-
phone call to Bush, Miller verified her belief that
Achord was not entitled to union representation.
Miller then walked to Bush's office and returned with
a copy of the governing collective-bargaining agree-
ment and showed it to Achord to support her denial
of the employee's request for union representation. At
that moment, Ralph lerig, assistant personnel man-
ager, walked into the office. Achord asked him if she
was entitled to union representation. and he said that
she was not. Achord asked Herig what was going on
and why she was being fired. Herig explained that it
was a departmental decision that Achord was not
working out and that the Company could not use her
services. Bush then walked into the office. Bush and
Achord discussed the latter's work performance. Bush
gave Achord several specific examples of her poor
performance in the past. Shortly after that discussion,
Achord began crying and then left the office to say
goodbye to her coworkers.
B. (Oflntlenions l/ Ofu Parlit.s
First, Respondent contends that the complaint was
not based on the substantive allegations of the charge.
In particular. Respondent notes that the charge al-
leges that Achord was discharged in violation of Sec-
tion 8(a)(3), whereas the complaint alleges that she
was denied her Wcingaren 2 rights in violation of Sec-
tion 8(a)( I ). Second, Respondent asserts that the
meeting at which Achord requested union representa-
tion was not an investigatory interview, as in Wein-
garten, but a disciplinary meeting designed to imple-
ment a decision which had been made several days
beforehand. Thus, Respondent argues, Weingarten is
inapplicable. Third, Respondent contends that
Achord made her request for union representation af-
ter the employee was notified of her discharge, and
that the meeting continued only at the insistence of
the employee. In other words, Respondent argues
that the interview effectively ended once Achord was
told that she was discharged, and she had no need for,
nor right to, union representation thereafter. Fourth,
Respondent asserts that the Union expressly waived
in articles IV and VI of the governing collective-bar-
gaining agreement the employees' statutory right to
union representation during their probationary pe-
riod. Those articles state, in pertinent part:
2 L.R B v. J 1eingurten, Inc., 420 I.S 251 (1975). In Weingarren, the
Supreme (Court staled that an employee has a Sec. 7 right to request union
representation at an insestigators inlersvie. shere the employee reasonabl
believes that the iivestigation wsill result In disciplinary action.
Article IV--I)IS('IPIIN, SUSPINSI()N & DISCIIAR(iE
It an employee covered by this Agreement is
to receive a reprimand or be suspended, sus-
pended with intent to discharge, or discharged,
he will be notified of such action by letter, with a
copy to the Union. If the action to be taken in-
volves either suspension or discharge, upon re-
quest of the affected employee, a Union repre-
sentative will be present at the time the employee
is notified of the suspension or discharge.
* * * * *
Article VI---SFNIORITY
A. A new employee shall undergo a one hun-
dred twenty (120) day probationary period, dur-
ing which he shall not be entitled to the protec-
tion of the provisions of this agreement.
Respondent contends article IV is a contractual re-
statement of Weingarten, and article VI is an express
waiver of those rights as to probationary employees.
Thus, it asserts, Achord had no right to union repre-
sentation even if Weingarten was otherwise applicable
to the facts in this case. Finally, Respondent argues
that, if' the Board finds that it violated the Act as
alleged, the remedy should not include reinstatement
and backpay. since there is no allegation that
Achord's discharge was itself violative of the Act.
The General Counsel, on the other hand, contends
that, under the Board's ('ertified Grocers decision,'
Achord is entitled to union representation not only at
an investigatory interview, but at her disciplinary in-
terview as well. In addition, the General Counsel ar-
gues that Achord was entitled to union representation
even though she was informed that she was being dis-
charged before she requested a representative, since
she made her request as soon as she believed that she
was going to be disciplined. Otherwise, he asserts, em-
ployers could deprive employees of their Weingarten
rights by notifying them at the outset of the meeting
that disciplinary action would be taken. The General
Counsel also contends that the interview continued
after Achord was initially informed that she would be
discharged, since Herig explained why she was being
fired, and Bush and Achord discussed the latter's
poor job performance. Thus, the General Counsel im-
plies, Achord was entitled to union representation
even after she was initially told that it would be in the
Company's best interest if that day were her last day
of employment with Respondent. The General Coun-
sel argues further that, in addition to Achord's indi-
vidual need for union representation at the interview,
a union representative's presence was justified under
3 (Cerrgfied Grocer sj o ('alfirnia. I.rd. 227 NI B 21 (1977), enforcement
denied 587 :.2d 449 (9th Cir. 1978)
996
ARLINGTON HOSPITAI
Weingarten in order "to observe what, if any, bearing
any such meeting might have on the interests of the
other employees in the unit."4 Finally, the General
Counsel argues that, even if article VI of the govern-
ing collective-bargaining agreement waived the con-
tractual right of probationary employees to union
representation at the time of discharges or suspen-
sions, it did not waive Achord's statutory right to rep-
resentation at a disciplinary interview.
C. Discussion
In Certified Grocers, the Board5 concluded that the
Supreme Court's decision in Weingarten applied to
any interview, whether labeled investigatory or disci-
plinary, which the employee reasonably believes may
result in disciplinary action being taken against him.
The United States Court of Appeals for the Ninth
Circuit denied enforcement of the Board's Order, as
in its opinion Weingarten did not require a right to
representation when the purpose of the interview was
merely to inform the employee that he was being dis-
ciplined. We have reexamined our decision in Certi-
fied Grocers and now think that case was wrongly
decided on its facts. To that extent, it is hereby over-
ruled. We now hold that, under the Supreme Court's
decision in Weingarten, an employee has no Section 7
right to the presence of his union representative at a
meeting with his employer held solely for the purpose
of informing the employee of, and acting upon, a pre-
viously made disciplinary decision.
We stress that we are not holding today that there
is no right to the presence of a union representative at
any "disciplinary" interview. Indeed, if the employer
engages in any conduct beyond merely informing the
employee of a previously made disciplinary decision,
the full panoply of protections accorded the employee
under Weingarten may be applicable. Thus, for exam-
ple, were the employer to inform the employee of a
disciplinary action and then seek facts or evidence in
support of that action, or to attempt to have the em-
ployee admit his alleged wrongdoing or to sign a
statement to that effect, or to sign statements relating
to such matters as workmen's compensation, such
conduct would remove the meeting from the narrow
holding of the instant case, and the employee's right
to union representation would attach. In contrast, the
fact that the employer and employee thereafter en-
gaged in a conversation at the employee's behest or
instigation concerning the reasons for the previously
determined discipline will not, alone, convert the
meeting to an interview at which the Weingarten pro-
tections apply.5
4227 NI.RB at 1214. See also fn. 6 In I"inrngaren,. supra at 261. cited bs
the General Counsel
Then-Member Fanning and Member Penellro: former Member Walther
dissenting
In summary, as long as the employer has reached a
final, binding decision to impose certain discipline on
the employee prior to the interview, based on facts
and evidence obtained prior to the interview, no Sec-
tion 7 right to union representation exists under
Weingarten when the employer meets with the em-
ployee simply to inform him of, or impose, that previ-
ously determined discipline. To the extent that the
Board has in the past distinguished between investi-
gatory and disciplinary interviews, in light of Wein-
garten and our instant holding, we no longer believe
such a distinction to be workable or desirable. It was
this distinction which Certified Grocers abandoned.
and to that extent we still believe the decision was
correct. Thus, the full purview of protections ac-
corded employees under Weingarten apply to both
"investigatory" and "disciplinary" interviews, save
only those conducted for the exclusive purpose of no-
tifying an employee of previously determined disci-
plinary action.
Applying the foregoing to the instant case, the
stipulated record is clear that Respondent reached its
decision to discharge Achord 3 days betbre the
March 17 meeting at which Achord was informed of
that determination. Indeed, it is undisputed that the
sole purpose of that March 17 meeting was to inform
Achord of her discharge. The fact that Achord there-
after insisted that the meeting continue in order to
obtain an explanation of the reasons for her discharge
does not convert the meeting into an interview in
which Achord had a Section 7 right to union repre-
sentation. Respondent had reached a final, binding
decision to discharge Achord prior to the meeting.
and its decision was based on facts and evidence ob-
tained prior to the meeting. Under these circum-
stances, we can only conclude that a finding contrary
to that which we reach herein would not further the
purposes and policies of the Act, and, indeed, would
foster industrial strife. Had Respondent refused to re-
spond to Achord's inquiries, there is no doubt but
that no "Weingarten rights would attach.' Our dissent-
ing colleagues, however, would find that Respon-
Contrary to the contention of the majority in (erified (;rl' rr such a
conversation or discussion between the employer and emplo)ee des nl
require the presence of a union representative to inform the emplsee ,of his
nghts and the support the employee might expect from the union. or to elicit
inlormation necessary for the protection of the interests of the other employ-
ees n Ihe unit Once a disciplinary declsion has been made b the emploer.
the proper forum ofr the discussion and evaluation oft hat disciplinar. aIcton
shifts to the grieance procedure nlike an interview at which no tormal
action is taken b the employer. the invocation of discipline b the eploier
automatically subjects that decsion to the grievance procedure. during
which all the events surrounding the disciplinary action catn he exatltined
and e.aluated b the union. and a decision made b the union as to the best
course of action to he taken in light ot the interests ot all of the enmpl,ees in
the unit
' See A.moco i,i ( par. 28 NI.RB H S (1078x
997
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent's humane reaction to Achord's protestations,
rather than flatly rejecting them or even refusing to
listen to them, brought the intricacies of Weingarten
into play. With this we cannot agree.8
Indeed, were we to conclude otherwise and to con-
tinue to apply the holding of Certified Grocers, the
consequences are all too predictable. Thus, an em-
ployer faced with the possibility that explaining to an
employee the reasons for imposing discipline-even if
the explanation results from the employee's impor-
tunings-may open a Pandora's box and clear the
way for an unfair labor practice proceeding, with its
attendant expenditure of time and money, likely will
choose a safer alternative. That alternative will al-
most certainly be a return to the "pink slip," a result
which, in our opinion, would serve neither the interest
of the employee nor any objective of enlightened la-
bor relations policy.
Based on the foregoing, we find that Respondent
did not violate Section 8(a)(l) of the Act by denying
employee Achord's request for union representation.
Accordingly, we shall dismiss the complaint in its en-
tirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the complaint herein
be, and it hereby is, dismissed in its entirety.
MEMBER MURPHY, concurring:
Confusion in the wake of Weingarten9 stems from
the propensity of my colleagues, both on the majority
and those dissenting herein, to use the term "inter-
view" indiscriminately when attempting to mark the
boundaries of an employee's right to representation in
a confrontation with his or her employer. While I
agree with the basic distinction as to when a Wein-
garten right exists, I find it necessary to define more
precisely what is an interview to which the right to
representation attaches and what is not, and thus end
the confusion under which the Board has heretofore
labored.
At the outset, I state the well-established rule that
an employer has an absolute right to terminate or
I Since we have found that employees, regardless of employment status.
have no right to union representation under Weingarten at meetings such as
that conducted herein, Achord's status as a probationary employee has no
bearing on our decision. For the same reason, we deem it unnecessary to
decide the issue of whether a provision in a collective-bargaining agreement
which purports to waive a probationary employee's Weingarten nrights is ef-
fective.
As a final matter. Respondent asserts that the complaint is at substantial
vanance with the allegations of the charge. However, since the complaint's
allegations relate to the same events as does the charge (i.e., Achord's dis-
charge and the interview at which she was discharged), it is clear that the
charge is adequate to support the complaint. See Texas Industries, Inc., e al.,
139 NLRB 365. 366-367 (1962); N.L.R.B. v. Fani Milling Co., 360 U.S. 301
(1959); National Licorice Co. v. N.LR.B., 309 U.S. 350. 368 369 (1940).
9 N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251 (l1975).
otherwise discipline an employee for cause. This right
was not diminished by the Supreme Court's opinion
in Weingarten. Therein, the Court held simply that an
employee need not involuntarily submit to an investi-
gatory interview with representatives of management,
which that employee reasonably believes may result
in his or her discipline, without the presence of a rep-
resentative of his or her own. However, consistent
with the aforesaid right of an employer to discipline,
the employer is free to pursue its investigation with-
out interviewing the employee involved, thereby leav-
ing to the employee the choice between having an
interview, unaccompanied by his or her representa-
tive, or having no interview and foregoing any benefit
which might be derived therefrom.
More recently, in Certified Grocers of California,
Ltd.,' the Board interpreted Weingarten, I believe er-
roneously, as extending the employee's right to repre-
sentation to situations clearly beyond the investiga-
tory stage, embracing, as well, all so-called
disciplinary interviews during which a prior decision
by management to take adverse action is verbally
communicated to an employee. However, I believe
that a correct reading of Weingarten requires that the
Board maintain a real distinction between investiga-
tory interviews and disciplinary actions in determining
whether or not an employee has a right to representa-
tion when summoned to appear before management.
Clearly, an interview reasonably intended to gather
facts upon which to make a subsequent decision con-
cerning adverse action is an investigatory interview.
Likewise, an interview undertaken by an employer to
gather facts or to obtain an admission, in support of a
decision previously made, either tentative or absolute,
constitutes an investigatory interview for my pur-
poses.
On the other hand, it is equally clear that a confer-
ence called to apprise an employee of adverse action
taken or the reasons therefor does not fall within the
ambit of an "investigatory interview." This is so even
if an employee's protestations result in an extended
confrontation with representatives of management
and discussion is consequently expanded to include
specific examples of employee misfeasance.
I would find an employee entitled to the presence
of a representative, upon request. in any interview-
whether called investigatory or disciplinary-in
which information is sought from the employee. I
thus distinguish between interviews to secure infor-
mation on the one hand, and action to impose disci-
pline on the other. The logic behind such a distinction
is readily apparent when considered in the light of the
Supreme Court's opinion in Weingarten wherein the
Court observed that the function of an employee rep-
'°227 NLRB 1211 (1977). I did not participate in that Decision.
998
ARLINGTON HOSPIT'AI.
resentative present at investigatory interviews is "to
assist the employee, and . . . attempt to clarify the
facts or suggest other employees who may have
knowledge of them."''
Opportunities to give assistance which present
themselves to such a representative are indeed bound-
less, and I shall make no attempt here to exhaust the
possibilities. However, it is clear that "assistance"
contemplates more than mere advocacy in a determi-
nation of "guilt or innocence," embracing as well all
manner of guidance which may be afforded an em-
ployee to protect the latter's rights under a collective-
bargaining agreement.
Turning now to the facts of the instant case, it is
uncontroverted that on Tuesday, March 14, 1978,
Achord's immediate supervisor, Miller, advised Gen-
eral Office Manager Bush that Achord. a probation-
ary employee, was not "working out" and recom-
mended that she be discharged. Bush agreed. Miller
and Bush then advised Braud, assistant vice president
of customer service. and Johnson, assistant vice pres-
ident and assistant secretary, of their decision. There-
upon, Miller filled out a discharge form. It was de-
cided that Achord would be terminated on Friday.,
March 17, 1978.
On the appointed day, Miller called Achord into an
office at the Respondent's facility and told her that
because things were not "working out" it would be in
the Company's best interest if that were Achord's last
day of work. Achord asked if she was fired. Miller
repeated essentially what she had said before. Achord
protested that the discharge was unfair and requested
the presence of a union representative. This request
was denied. Achord then asked Assistant Personnel
Manager Herig. who had meanwhile entered the of-
fice, why she was being fired. Herig replied that it was
a departmental decision that Achord was not working
out and that the Company could not use her. Bush
then walked into the office. She and Achord "dis-
cussed" the latter's work performance, Bush giving
several specific examples of her poor performance in
the past. Thereafter, Achord left.
Based on the foregoing. I find that Achord was not
entitled to representation and, accordingly. that the
Respondent did not violate the Act by denying her
request therefor at the time she was terminated. The
faicts herein demonstrate that a decision to terminate
Achord was unequivocally made prior to the incident
here in question. Management did not seek out
Achord to elicit information from her in support of its
decision. previously made. It is likewise clear that un-
der the circumstances no presentation by Achord. or
h, anyone on her behalf, would have deterred the
management spokesman from discharging her. The
1420 S 251. h260 (175i
protracted discussion which followed Miller's effort to
advise Achord of her termination resulted solely from
the latter's continued protestation and, I infer from
all the foregoing facts, from management's inability
to end the ensuing confrontation gracefully.' 2
In these circumstances. I concur in the decision to
dismiss the complaint herein in its entirety.
CHAIRMAN FANNING. dissenting:
I do not agree with the majority to dismiss this case
on the ground to put it simply that the Board does
not wish to encourage employers to adopt a "pink
slip" practice with respect to discharge which is
feared if the 4'eingarten principle is given its intended
meaning.'3
Members Jenkins and Truesdale specifically over-
rule the Board's decision in Certified Grocers, 14 the
Court of Appeals for the Ninth Circuit having de-
clined to enforce it. They conclude that Certified Gro-
cers was wrongly decided on its facts. though correct
in having abandoned the distinction between investi-
gatory and disciplinary interviews. Member Murphy.
concurring, would recognize the Weingarten right to
the presence of a representative only at interviews
where information is sought from the employee.
whether the interview is called investigatory or disci-
plinary. She would dismiss here because management
did not "seek out Achord to elicit information" with
respect to a discharge decision "unequivocally made
prior to the incident." Members Jenkins and Trues-
dale also stress the fact that a "binding". decision to
discharge had been made he,/bre the interview, and
the meeting was held solely to inform the employee of
it. Because that decision could have resulted in a fat
refusal by management to respond to employee
Achord's reaction of unfair treatment and request for
the presence of a union representative, they, like
'2 ontrary to (Chairman Fanning's assertions, there is no basis for finding
that the Employer here sought at an) time dunng the inters ew to secure an)
intormation from Achord
11 As Member Penello has described n his dissent. the genesis of the prin-
ciple derives from the Board's earlier rule. "firmly established" hefore the
Supreme Court's Weingrten decision in 1975. that an employee was entitled
to the presence of his union representative at a disciplinary ntersies if he
had reasonable grounds to behlieve that disciplinary action might result
Though Member Penello did not asor the extension if the principle con-
cerning disciplinar' nterviews to insestigator, intervlews, as is apparent
from his dissent in the Board's Weingarien decision (J 1Ir-ngarten, In 202
NLRB 446 (1973}), and though three circuit courts of appeals declined In
1973 to enforce cases extending the Sec 7 right from disciplinar t nestl-
gatorx nterviews (N.I..RB. v. Qualir Alanu/acruring (ornpomn, 481 F.2d
1018 4th Cir. 1973): M1obil Oil Corporation v. N I R B, 482 F 2d 842 17th
('ir 1973) V LR B . J Weingarten. Inc 485 F2d 1135 (5th ('r. 1973)).
the Supreme Court agreed with the Board and affirmed n L. R B v. J
Iiinylgrin. Inc , 42) i S 251 11075).
With Memniber Penelio's conclusion that a "close reading" Iof itngurt n
nealtes the nlmjont¥s attempt I) read the Suprene ('Court's decision nr-
roswls I thorolughlk agree The majort In i terrprets II tsr lnarr-lI. n .fact, a
irtull t destros the concept ifrm hlich It sprang
i i( iri-d (.i rr, ( a/ltrnia. I . 227 NI RB 1211 I 1977)i entorce-
ment dlrled 87 2.1 49 9th ( r 19?S
999
I)1('ISI()ONS () NAI IONAIL ILABOR R. I'()ONS BOARI)
Member Murphy, assess the situation as if Achord
had not been denied the representation she requested.
Ultimately, they accuse the dissenters of penalizing
Respondent for its 'humane" reaction in discussing
the matter minus Weingarlen safeguarcds, while Mem-
ber Murphy infers that the protracted discussion with
Achord can be ascribed in part to management's in-
ability to end the ensuing confrontation gracefully.
Despite the m;ijority's apparent conviction to the
contrary, there is simply no certainty that an inter-
view to announce discipline already decided upon
will not, as it proceeds, take on the character of an
investigation, just as it did in this Baton Rouge case.
Here the Employer attempted to rely upon the bar-
gaining contract to deny the employee her statutory
right to union representation' 5 and then proceeded to
convert what was apparently intended as a discharge
annoucement into a discussion of employee Achord's
work record. At that point, as I interpret the Court's
opinion, a Weingarten right came into being. In my
view, the standard the majority adopts is totally unre-
alistic. By placing great emphasis on the decision to
discharge having been made in advance of the inter-
view, the members of the majority ignore an impor-
tant aspect of their approach. It is the employer who
controls an asserted decision to discharge and its tim-
ing, as well as the selection of the managerial person
to announce that decision a selection easily chan-
neled, as in ('ertiiedl Grocers. to someone who lacks
authority to revoke the discipline. If the employer
nevertheless proceeds to discuss with the employee
the decision to discharge after denying a request for
representation a discussion the employer is not
obliged to engage in- the employee's W'eingarlen
right has been violated.'6 It may, as the majority ana-
lyzes the facts here, have been the Employer's inten-
tion to hold a meeting solely to inform the employee
of discharge, or to "act upon" a disciplinary decision
already made, but that is not what has occurred.
In short, I deplore the majority's undue haste, on
the facts before us, in restricting the statutory right
recognized in Weingarten. The majority is also, in my
view, abdicating responsibility in this important area
by relegating determination of a statutory right to the
grievance procedure. By relying upon the grievance
procedure as "the proper forum" they overlook what
m Though the contract here specifically excluded probationer ronl its
"protection," it also provided that it he construed ;as not interfering "with the
obligations of the parties hereto to comply with any and all laws,. or an)
governmental rules and regula tions or orders " As a prohbationer. he
employee had staltutolr) rights, of w.hich the 4lcinlgartenl pronouncrlItelt is
part I note that there is no showing that the union representative declined to
be present. though the colntrlct excluded probationary emplosees is here
indicated. I note also that the Union is the ('harging Party
1 The thrust ( n dissent is clearly not that the mployer "sought"
inflormation fronm \chord at the discussion. as Member Murphy suggests.
hut thait n cploce con l onted with an interview for dlscplinars action
entitled to aI represeital;tive it the emploscr prlceeds to disculss his or her
wo rk recrd
to me are three very important sentences in the Su-
preme Court's opinion (42() U.S. at 263 264):
In other words, respondent would defer repre-
sentation until the iling of a formal grievance
challenging the employer's determination of guilt
after the employee has been discharged or other-
wise disciplined. At that point, however, it be-
comes increasingly difficult for the employee to
vindicate himself, and the value of representa-
tion is correspondingly diminished. The em-
ployer may then be more concerned with justify-
ing his actions than re-examining them.
What a pity to retreat on the facts in this case and
because one circuit court of appeals has disagreed
with the Board in a clearly distinguishable case.
I would find an 8(a)( ) violation based upon the
violati(on of a I'cingarten right.
Ml MBtiR PNI I.i., dissenting:
Unlike my colleagues, I would find that Respon-
dent violated Section 8(a)(l) of the Act by denying
employee Achord's request for union representation
at a disciplinary interview and compelling Achord to
attend that interview unaccompanied by a union rep-
resentative. In my view, the Section 7 right of an em-
ployee to request the presence of his union represent-
ative at a disciplinary interview was firmly
established by Board law prior to the Supreme
Court's decision in Weinglarten, and, as indicated by a
Board majority in Cerlified Grocers, the Supreme
('ourt's decision in Weingarten merely reaffirmed the
existence of' that Section 7 right. In fact, as will be-
come clear in the following discussion, the Supreme
(ourt's decision in Weingarten granting an employee
the Section 7 right to request the presence of his
union representative at an ilesiigalorv interview was
merely an extension of the previously existing right of
an employee to request the presence of his union rep-
resentative at a disciplintar interview. T'hus, the in-
credible effect of' the majority decision in the instant
case is to remove from employees a Section 7 right
which existed prior to Weingarten and which actually
formed the foundation for the Section 7 rights estab-
lished by the Supreme Court's decision in Weingarl-
cit. 7
Prior to 1967, the Board reached the question of'
union representation at employer-employee inter-
views on only two occasions. In both decisions, how-
ever, the outcome was based upon the extent of union
activity engaged in by the employee requesting union
representation. In Ro.s, Gealr and ool Co., 8 the
Board recognized the right of an employee to request
' In addillr i t m Inal sis set lforth beltu , I roncur in ('hairman Ian-
nine', uriher anall.sss sel lforth in his disenting opinion regarding the inher-
ei eIIth 1e.esC I1 1 thle rtilrt ilae of IN colle.agues i the majrir.
m 63 NI R lot12 19'45 .enltorcerieil denied 158 I 2d 607 7th ir 1947)
BATON ROUGE WATER WORKS COMPANY
the attendance of union committeemen at an investi-
gatory interview because the employee was being
called in "partly as a member of a union committee
about a matter concerning which the Respondent had
already dealt with that committee as the exclusive
bargaining representative." t9 However, in Dobbs
Houses. Inc.,20 the Board adopted a trial examiner's
dismissal of an 8(a)(l) allegation based on the em-
ployer's denial of an employee's request for union
representation at an interview called by the employer
for the purpose of disciplining the employee. The trial
examiner distinguished the Board's decision in Ross
Gear and Tool Co. by noting that the employee in
Dobbs Houses was "discharged for cause and the dis-
charge conference was not predicated upon her in-
volvement in any protected union activity."2'
It was not until 1967 that the Board again con-
fronted the question of an employee's right to union
representation at a disciplinary interview, and in so
doing it abandoned its previous reliance upon the ex-
tent of union activity engaged in by the employee
requesting union representation. In Texaco, Inc., Pro-
ducing Division,22 the Board held, inter alia, that an
employer violated an employee's Section 7 rights by
denying the employee's request that his union repre-
sentative be permitted to attend a disciplinary meet-
ing called by the employer. The Board noted that the
meeting "was not simply part of an investigation into
some alleged theft [by the employee]," and the em-
ployee "was not invited to attend solely to provide the
Company's representatives with information. Rather,
the meeting was concerned essentially with [the em-
ployee] and his alleged theft, the facts of which were
known to management representatives some 2 weeks
earlier, and, more specifically, with the Company's
concluding its 'case' against [the employee] in order to
provide a 'record' to support disciplinary action, if
deemed appropriate."
Thus, the Texaco decision for the first time recog-
nized the distinction between a so-called investigatory
interview, where the employer is merely seeking facts
and information with no contemplation of disciplin-
ary action, and a so-called disciplinary interview,
where the employer already possesses the facts and
information and intends to invoke discipline. This
distinction was thereafter applied by the Board in a
number of decisions. In Chevron Oil Companny , 24 the
19 63 NLRB at 1034.
2r 145 NLRB 1566 (1964).
21 Id at 1571.
22 168 NLRB 361 (1967), enforcement denied 408 F 2d 142 (5th Cir. 1969).
23 168 NLRB at 362 The Board also found that the respondent siolated
Sec 8(aX5) of the Act by denying the union the right to represent the em-
ployee at the disciplinary interview because such action by the employer
violated its statutory obligation to bargain with the union concerning the
terms and conditions of employ ment of the employees it represents
24 168 NLRB 574 (1967)
Board adopted a trial examiner's decision which
found no violation of Section 8(a)(1 ) by an employer
who denied an employee's request for union represen-
tation at a mere factfinding interview. The trial exam-
iner emphasized in his decision that no right to union
representation existed at the interview inasmuch as
"no definite adverse action [had] as yet been decided
upon by the [emplover. " 25 Similarly. in Jacohe-Pear-
son Ford, Inc.,2 6 the Board found no violation of Sec-
tion 8(a)(1) where the employer denied an employee's
request for union representation at a meeting called
to discuss the employee's refusal to accept a job as-
signment. The trial examiner had found a violation
because, as in Texaco, the employee faced "potential"
discipline and thus was entitled to union representa-
tion. The Board reversed the trial examiner, distin-
guished Texaco by emphasizing that there was no
preinterview decision to discipline the employee, and
concluded that, "in view of the absence of any defi-
nite adverse action taken on [the employee] and Re-
spondent's willingness to explain and bargain with
the Union any disciplinary decision made. Respon-
dent did not breach any statutory obligation in deny-
ing union representation to [the employee] at the fact-
finding meeting .... 7
In Dayton Typographical Serivice, Inc.,28 the Board
adopted a trial examiner's decision which, relying on
Texaco, found that an employer did not violate Sec-
tion 8(a)( 1) by denying an employee's request for
union representation at a factfinding interview con-
cerning alleged proofreading errors by the employee.
The trial examiner noted that "it is only where an
employee is called into a discussion with management
on a problem involving his performance, which has
gone beyond the factfinding or investigatory stage to
a point where management has decided that disci-
pline of that specific employee is appropriate, that the
employer is required on demand of either the em-
ployee or his bargaining agent to permit that agent to
be present."29 Again, in Illinois Bell Telephone Conm-
pan, 0 the Board adopted a trial examiner's decision
finding no violation of Section 8(a)(1) where the em-
ployer denied an employee's request for union repre-
sentation at an interview with the employer's "secu-
2/ Id at 578.
2' 172 NLRB 594 (1968).
" Id at 595. Subsequent to the issuance of the Board's decisions in (he.
ron Oil and Jacobe Pearson Ford the Fifth Circuit Court of Appeals denied
enforcement of the Board's decision in Tevaco. See fn. 22, supra However.
the court denied enforcement solely because in its view the eidence was
clear that the interview was investigator 5 in nature, and that there was no
evidence that the employer sought to deal with the employee about the
consequences of the alleged misconduct. Thus, the court noted that. as n
their,on Oil and Jacobe-Pearson Ford. the employer in Texaco had not com-
mitted itself to disciplinary action at the time of the interie. Clearly. the
Fifth Circuit adopted the Board's distinction betleen inestiga.iorx and ds-
cipilnars interviews.
2' 176 NL.RB 357 (1969)
/ 'Jd. at 361.
192 N.RB 1834 (19711
1001
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rity specialist" regarding the alleged theft of money
by the employee. The trial examiner relied on his
finding that the security specialist would turn over
whatever information he gathered from the interview
to management officials who had the authority to ef-
fect disciplinary action, and, thus, that there was no
evidence that any disciplinary decision regarding the
employee was made prior to the termination of the
interview with the security specialist. Finally, in Lafa-
yette Radio Electronics Corp.,3 the Board adopted a
trial examiner's dismissal of a complaint alleging a
violation of Section 8(a)(5) by an employer for the
denial of a union representative's request to be pre-
sent at a meeting between an employee and manage-
ment regarding the employee's alleged theft of com-
pany property.3 The trial examiner noted that Board
law had evolved to the point where the "right to
union representation exists if the purpose of the meet-
ing between the employee and management is disci-
plinary; but that the Union has no right to be present
if the purpose of the meeting is factfinding or investi-
gatory,"3 3 citing in support Chevron Oil, Jacobe-Pear-
son Ford, and Dayton Typographical Service.
Therefore, prior to 1972, the Board had clearly re-
stricted an employee's Section 7 right to request the
presence of his union representative at an interview
with his employer to disciplinary interviews, and had
repeatedly refused to extend that right to so-called
investigatory or factfinding interviews. Then, in Qual-
ity Manufacturing Company,34 the Board for the first
time confronted a situation where an employee was
actually disciplined because he refused to participate
in an inquisitorial interview with his employer. Thus,
unlike Texaco, where the employer merely required
the employee to attend the interview in the absence of
a union representative, the employer in Quality retali-
ated against the employee for requesting union repre-
sentation. Because of the nature of the employer's
conduct, a majority of the Board found a violation.
But in doing so, it was confronted by a formidable
legal obstacle, namely, that the interview in Texaco
was clearly disciplinary in nature, whereas the inter-
view in Quality was investigatory in nature. Since the
Board in Texaco and its progeny had repeatedly re-
fused to find that an employee had a Section 7 right
to request his union representative at an investigatory
interview, the Board majority in Quality in effect de-
cided that the employer violated the Act by disciplin-
ing an employee for the exercise of a right which until
that point in time did not exist under the Act. To do
3" 194 NLRB 491 (1971).
32 Since the employee had not requested union representation, there was
no allegation of an independent 8(aX1) violation as in Texaco.
3 Id. at 492.
' 195 NLRB 197 (1972) (Former Chairman Miller, then-Member Fan-
ning, and Member Jenkins; former Member Kennedy, dissenting).
so, the Board majority in Quality distinguished Tex-
aco and its progeny on the grounds that those cases
dealt solely with alleged violations of Section 8(a)(5)
and "whether the right of the Union to bargain collec-
tively was such that an employer could not legally
deny its request to participate in the interview." (Em-
phasis supplied.)35 Once Texaco and its progeny were
eliminated, the Board majority could evaluate the
facts in Quality unencumbered by prior Board law.
The majority found that an employee's individual
rights under Section 7 would be seriously undermined
if he could only request union representation under
penalty of disciplinary action, and, thus, it was neces-
sary to protect employees from such a consequence.
To determine when an employee had such a pro-
tected Section 7 right to request union representation
at an interview with his employer, the standard estab-
lished by the majority turned upon whether the em-
ployee "had reasonable grounds to believe that disci-
plinary action might result from the employer's
investigation of [the employee's] conduct." The ap-
parent rationale of the majority was that, if a possible
consequence of an investigatory interview was the
discipline of the employee, then for all intents and
purposes the interview was disciplinary in nature and
required Section 7 protection for the employee.
It did not take very long before the decision in
Quality was extended further by the Board. In Mobil
Oil Corporation,3 7 a Board majority found that an em-
ployer violated Section 8(a)( ) by denying an employ-
ee's requests for his union representative at an inter-
view with his employer, and compelling the employee
to attend such interview unaccompanied by his union
representative. The Board specifically found that the
interview was "investigatory" in nature, but that the
employee in question "had reasonable grounds to fear
that [he was] suspected of theft of company property
and therefore that the [interview] could adversely af-
fect [his] employment status."38 Thus, the Board ma-
jority in Mobil Oil firmly established the Section 7
right of an employee to request the presence of his
union representative at a strictly investigatory inter-
view so long as the employee reasonably feared that
disciplinary action would result from such interview.
Again, the apparent rationale behind this standard
was that the investigatory interview was converted
into a disciplinary interview, requiring Section 7 pro-
tection.
The existence of a Section 7 right to request a
union representative at a disciplinary interview, how-
ever, was obviously unaffected by the Board's deci-
"3Id. at 198.
MId at 199.
7 196 NLRB 1052 (1972) (Former Chairman Miller, then-Member Fan-
ning. and Member Jenkins; former Member Kennedy. dissenting).
" Ibid.
1002
BATON ROUGE WATER WORKS COMPANY
sions in Qualityv and Mobil. This was clearly revealed
by the Board's decision in National Can Corporation,39
in which it adopted an Administrative Law Judge's
finding of an 8(a)( ) violation where the employer de-
nied an employee the right to have his union repre-
sentative present at a meeting called by the employer
for the express purpose of disciplining the employee.
The Administrative Law Judge specifically found
that, since the purpose of the meeting was clearly dis-
ciplinary in nature, the employee "could reasonably
expect to be disciplined," and, thus, the employee's
"right to union representation is beyond question un-
der the Quality criteria."4 I concurred in finding a
violation in National Can, but solely because the "Re-
spondent's purpose in calling the ... meeting was to
mete out discipline rather than to merely conduct an
investigative interview."4 ' Thus, it was my view, origi-
nally expressed in Western Electric Company, Haw-
thorne Works,42 that the Board could not extend the
Section 7 right to request union representation at dis-
ciplinary interviews to investigatory interviews.
Shortly thereafter, the Board adopted the Adminis-
trative Law Judge's Decision in J. Weingarten, Inc.43
The Administrative Law Judge in that case found a
violation of Section 8(a)(l) where the employer de-
nied an employee's request for union representation
at an investigatory interview because the employee
"could reasonably conclude that the interview might
put her job security in jeopardy." I dissented from
the Board's adoption of the 8(a)(1) violation on the
grounds that it was "clear from the record that Re-
spondent was merely conducted an investigative
rather than a disciplinary interview,"4 5 thereby reaf-
firming my position that the Section 7 right to request
union representation at a disciplinary interview
should not be extended to an investigatory interview.
Thus, in a little over I year, the Board had suc-
ceeded in extending to investigatory interviews the
firmly established rule regarding an employee's right
to request the presence of his union representative at
a disciplinary interview. In so doing, the Board seem-
ingly abandoned any further attempts to distinguish
between investigatory and disciplinary interviews as
the standard for determining when an employee has a
Section 7 right to request the presence of his union
representative at an interview with his employer, and
instead applied a standard which focused upon the
employee's reasonable fear that the interview might
39 200 NLRB 1116 (1972) (Former Chairman Miller, then-Member Fan-
ning, and Member Penello).
"Id. at 1123.
41 Id. at 1116, fn. 3.
42 198 NLRB 623 (1972) (Former Chairman Miller, former Member Ken-
nedy, and Member Penello).
'3 202 NLRB 446 (1973).
4 Id at 449.
41 Id. at 445, fn. 2.
result in disciplinary action. As noted above. the ap-
parent rationale was that, if an employee reasonably
feared disciplinary action at an otherwise investiga-
tory interview, then that interview was in reality a
disciplinary interview requiring that the employee be
granted his Section 7 right to request union represen-
tation.
The Board's rationale, however, was struck down
by the refusal of the Fourth, Seventh, and Fifth Cir-
cuit Courts of Appeals to enforce the Board's deci-
sions in QualitV,46 Mobil,47 and J. Weingarlen,48 re-
spectively. Each court held that the Board's rationale
in each case was inconsistent with prior Board law.
The Fifth Circuit, relying in part on the decisions of
the Fourth Circuit in Quality and the Seventh Circuit
in Mobil, concluded as follows:
We believe that an investigatory interview would
be a premature stage at which to invoke a re-
quirement of union representation in the absence
of some showing that the purpose of the inter-
view was not merely to elicit facts concerning
employee conduct but to impose disciplinary
measures upon the employee so that grievance
hearings later49 on would merely put the seal on
the employer's prejudgment.
Clearly, the various circuit counts did not accept
the Board's rationale in extending the Section 7 right
to request union representation from disciplinary to
investigatory interviews. The Supreme Court. how-
ever, did. In N.L.R.B. v. J. Weingarten, In.,SO the Su-
preme Court affirmed the Board's conclusion,
reached in Quality and Mobil, that an employee has a
Section 7 right to request the presence of his union
representative at an investigatory interview which the
employee reasonably believes may result in disciplin-
ary action. That the Supreme Court's analysis in
Weingarten focused solely upon the right to request a
union representative at an investigatory interview is
obvious. However, any contention that the Supreme
Court's limited holding in Weingarten somehow
eliminated the previously existing Section 7 right to
request a union representative at a disciplinary inter-
view is not borne out by a close examination of the
Supreme Court's decision in Weingarten. The Court
in Weingarten specifically stated, in explaining the
contours and limits of the Section 7 right to request a
union representative at an investigatory interview,
that the Board in Mobil Oil "adhered to its decisions
distinguishing between disciplinary and investigatory
interviews, imposing a mandatory affirmative obliga-
°N.L.R.B. v. Qualit Manufacturing Comparnv, 481 F 2d 101 (4th Cir.
1973).
' Mobil Oil Corporation v. N.L R.B., 482 F.2d 842 7th Cir 1973).
'S N L.RB. . J. Weingarten, Inc., 485 F.2d 1135 5th ('lr. 1973}.
49 485 F.2d at 1138.
~°420 l!S. 251 (1975)
1003
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion to meet with the union representative only in the
case of the disciplinary interview,"5 citing Texaco,
Chevron, and Jacobe-Pearson Ford. Although the
Court refused to pass upon the Board's attempt to
distinguish Texaco as dealing solely with a violation
of Section 8(a)(5), the Court did indicate its dissatis-
faction with such a distinction by stating that:
Insofar as the Court of Appeals [in Texaco] there
held that an employer does not violate §8(a)(l) if
he denies an employee's request for union repre-
sentation at an investigative interview, and re-
quires him to attend the interview alone, our de-
cision today reversing the Court of Appeals'
judgment based upon Texaco supersedes that
holding. 2
Clearly, the Supreme Court in Weingarten was aware
that the Board in Texaco had in fact found an in-
dependent violation of Section 8(a)(1) for the denial
of an employee's Section 7 right to request the pres-
ence of his union representative at a disciplinary inter-
view, as well as the fact that the Board in cases subse-
quent to Texaco had refused to extend such a Section
7 right to investigatory interviews. Otherwise, the Su-
preme Court would not have engaged in a lengthy
discussion of the recognized principle that earlier
Board precedents do not necessarily impair the
Board's ability to formulate new constructions of the
Act which run contrary to those earlier precedents.5 3
Indeed, such a discussion by the Supreme Court was
imperative inasmuch as the circuit court in Weingart-
en and Quality had reversed the Board's decisions in
both cases primarily because the Board had failed to
follow its own precedents."
Subsequent Board decisions involving the applica-
tion of the Supreme Court's decision in Weingarten
recognized that Weingarten merely extended the Sec-
tion 7 right of union representation at a disciplinary
interview to investigatory interviews, so long as the
employee reasonably fears disciplinary action as a re-
sult of the investigatory interview. In Mt. Vernon
Tanker Company,5 5 the Board found a violation of
Section 8(a)(1) where a ship's captain refused to per-
mit an employee of the ship to have his union repre-
sentative present at a disciplinary interview with the
captain. The facts revealed that the purpose of the
meeting was to inform the employee of a disciplinary
decision which had already been made by the cap-
' Id. at 259-260.
52 Id at 264.
'5 Id at 264-267.
4 Even dissenting Justices Powell and Stewart recognized that, prior to
Quality and Mobil, "the Board adhered to its distinction between 'investiga-
tive' and 'disciplinary' interviews, dismissing claims under both §8(a)(1) and
§8(a)(5) in the absence of evidence that the employer had decided to disci-
pline the employee." 420 U.S. at 271-272.
55 218 NLRB 1423 (1975) (then-Chairman Murphy, Member Jenkins, and
former Member Kennedy).
tain. The act of discipline was referred to as a "log-
ging" in that the disciplinary action was physically
entered into the ship's log by the captain in the pres-
ence of the disciplined employee. The evidence is
clear that the employee was directed to report to the
captain's office for "logging" and that the employee
refused to attend the "logging" in the absence of his
union representative. Applying the Supreme Court's
standard from Weingarten, the Board reasoned that,
inasmuch as the employee had reasonable grounds to
believe he would be disciplined when summoned to
the captain's office, the employee was entitled to the
representation he insisted upon at the disciplinary in-
terview.
The Board again applied Weingarten to a disciplin-
ary interview in Certified Grocers of California, Ltd.56
In that case, the facts revealed that the employer had
decided to invoke discipline against the employee
prior to the interview. Applying the Supreme Court's
standard from Weingarten, the Board majority con-
cluded that, since the employee reasonably feared
that he would be disciplined at such an interview, the
employer's denial of the employee's request for union
representation at such an interview was clearly a vio-
lation of Section 8(a)(l) of the Act.
However, in United States Postal Service,57 an Ad-
ministrative Law Judge found a violation of Section
8(a)(l) where an employer refused to grant an em-
ployee's request for his union representative at a
meeting called solely to inform the employee of his
discipline, and discharged the employee for insisting
on the presence of his union representative. The Ad-
ministrative Law Judge had relied on Weingarten and
Certified Grocers to support his finding of a violation.
The Board, however, stated that:
In adopting the Administrative Law Judge's De-
cision, we rely solely on his finding that [the em-
ployee] was discharged for seeking the assistance
of his union representative at a meeting at which
he was ordered to sign and accept a written no-
tice of suspension. Sec. 7 of the Act provides the
employee with a right to seek the support of his
union representative in such a situation. Respon-
dent discharged [the employee] because of that
protected conduct and the discharge therefore
violated Sec. 8(a)(1) of the Act. In these circum-
stances we find it unnecessary to decide whether
N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251
(1975), which holds that an employer is required
to permit the presence of a union representative
in certain circumstances, applies to the facts of
this case."
u 227 NLRB 1211 (1977) (then-Member Fanning and Member Penello:
former Member Walther, dissenting).
15 237 NLRB 1104 (1978) (Chairman Fanning, Members Jenkins and
Murph)).
5' Id at 1104. fn. I.
1004
BATON ROUGE WATER WORKS COMPANY
Thus, since the Supreme Court's decision in Wein-
garten, the Board in three separate decisions contain-
ing very similar facts has reaffirmed the longstanding
Board principle that an employee possesses a Section
7 right to request the presence of his union represent-
ative at an interview called by his employer for the
express purpose of invoking discipline against the em-
ployee. Regardless of whether such a Section 7 right
derives from the Supreme Court's decision in Wein-
garten (as found by the Board in Mt. Vernon Tanker,
supra, and Certified Grocers, supra), or whether that
Section 7 right exists irrespective of the Supreme
Court's decision in Weingarten (as found by the
Board in United States Postal Service. supra), it is
abundantly clear that such a right does in fact exist.
In restricting the Supreme Court's decision in
Weingarten to what they perceive to be its proper
scope, my colleagues have, inadvertently or other-
wise, eliminated a basic Section 7 right which existed
prior to the Supreme Court's decision in Weingarten.
If nothing else is clear from the discussion above trac-
ing the development of the Weingarten doctrine, it is
that an employee's Section 7 right to request union
representation at an investigatoro interview was
merely an extension of the previously existing Section
7 right to request union representation at a disciplin-
ary interview. To rely upon Weingarten for the denial
of a Section 7 right which in fact formed the basis for
the existence of Weingarten itself is, in my view, a
legal impossibility. Yet that is precisely what my col-
leagues have done in the instant case. I fear that my
colleagues' decision in the instant case seriously mis-
construes the Supreme Court's decision in Weingarten
and as such does not accurately reflect the current
status of the law.
In the instant case, employee Achord was called to
her supervisor's office and informed that she was
being discharged because "things were not working
out." Achord immediately requested the presence of
her union representative, which request was denied.
Following a discussion of Achord's right to union
representation under the collective-bargaining agree-
ment, Achord engaged in a discussion with two other
management representatives concerning the reasons
for her discharge, and she was cited specific examples
of her poor work performance. Shortly after that dis-
cussion began, Achord began crying, and then left the
office to say goodbye to her coworkers.
Based upon these facts, and applying to them what
I perceive to be the correct view of the law, it is abun-
dantly clear to me that Respondent violated Section
8(a)( I) of the Act by denying Achord's request for
union representation at her disciplinary interview and
by continuing that interview in the absence of( her
union representative.f9
{:rnald Stait, Po'll .Srat ,, upra. n 57. ( r'ttd (,rlr, ulpra.
Having expressed at considerable length my dis-
agreement with the legal aspects of my colleagues'
decision, I would also like to indicate that I am quite
puzzled by the secondary rationale expressed by my
colleagues in support of their decision. According to
the majority, not only is the Supreme Court's decision
in Weingarten limited strictly to investigatory inter-
views, but, in addition, any extension of the Wein-
garten principle to strictly disciplinary interviews
"would foster industrial strife." In their view, if em-
ployers are required to comply with an employee's
request for union representation at a disciplinary in-
terview, employers will inevitably return to the use of
the proverbial "pink slip" when informing employees
of disciplinary action. "which ... would serve neither
the interest of the employee nor any objective of en-
lightened labor relations policy." In my view, how-
ever, that rationale is even more applicable to the
circumstances of an investigatory interview. For the
inevitable result of the Weingarten principle itself is to
encourage employers to forego personal investigatory
interviews with employees and instead make disci-
plinary decisions based upon secondhand facts and
hearsay. For that reason, among others, I originally
objected to the extension of the right to union repre-
sentation from disciplinary to investigatory inter-
views. However, the Supreme Court in Weingarten
clearly rejected that rationale and, until today, I as-
sumed that such rationale had received a proper buri-
al.
In my view, permitting an employee to have a
union representative present at his disciplinary inter-
view would actually promote peaceful labor-manage-
ment relations. I agree with the observations of one
commentator who states that:
... union representation at disciplinary meetings
may bring Iemployers] substantial benefits. Early
union involvement will allow the steward to dis-
courage the prosecution of frivolous grievances.
Earl) union review of employer decisions will
also give the employer an opportunity to correct
errors that might produce ill feeling among em-
ployees. At the time of the meeting neither party
is locked into any position, but as a grievance
proceeds, the ability to compromise diminishes.
The inadequacy of grievance procedures for fact
finding affects both employers and unions.
Union representation could guarantee a better
understanding of the infraction charged. and ear-
ly. informal consideration of the merits of possi-
ble grievances might reduce the costs that the
1n 56 ,f! I r.,n linkAr -pr;. inl 'S %,m .... ' ('an. ,qr:. tI 19. .ind
7 ,1J,,,t. lgr tin 22
1005
DECISIONS OF NATIONAL LABOR RELAIIONS BOARDI
employer must bear in formalized grievance pro-
cedures.60
In addition, my colleagues' fear that employers may
resort to the "pink slip" when disciplining employees,
rather than permit union representatives at disciplin-
ary interviews, once again indicates their complete
misunderstanding of the Weingarten principle. Wein-
garten merely gives an employee the right to request
union representation at certain types of employer-em-
ployee interviews. Once the employee validly requests
union representation, the burden is on the employer
to either (I) grant the request; (2) discontinue the in-
terview: or (3) offer the employee the choice between
continuing the interview unaccompanied by a union
representative or having no interview at all.6" Obvi-
ously, every employee who is going to be disciplined
by his employer will not request the presence of his
union representative. But, even if the employee in-
vokes his rights under Weingarten, the employer is
under no obligation to continue the interview. That is
precisely the situation which occurred in Amoco Oil
Company.6 2 In that case, the employer called an em-
ployee into an office for the express purpose of invok-
ing discipline. Immediately upon being informed of
the discipline the employee requested the presence of
her union representative. The employer denied that
request and terminated the interview. Since the em-
ployer made no attempt to question the employee or
engage in any manner of dialogue following the em-
ployee's request for union representation, the Board
found no violation of Section 8(a)(1). Thus, the em-
ployer in Amoco Oil apparently accomplished pre-
cisely what my colleagues fear cannot be accom-
plished if' Weingarten is applied to disciplinary
interviews, namely, that the employer personally in-
formed an employee of her discipline and in doing so
did not violate the National Labor Relations Act. As
long as employers are aware that the majority of in-
terviews will not require the presence of a union rep-
bo Note. "l nion Presence in Disciplinary Meetings," 41 t ('hi. . Rev.
329. 344 1974), cited by the Supreme Court in Weingarten
1 General Eletri ('ormpanv. 240 NL.RB 479 (1979) ('hairman I tnning.
Members Penello and I ruesdale).
62 238 NI.RB 551 (1978) (Members Penello, Murphy. and I ruesdale).
resentative, my colleagues' fear of the return of the
"pink slip" is clearly unfounded. In any event, the
possible harm to peaceful labor-management rela-
tions caused by a return to the "pink slip" by some
unenlightened employers is far outweighed by the
practical advantages to be gained by the majority of
employers who abide by the teachings of Weingarten.
As a final matter, Respondent contends that, under
its collective-bargaining agreement with the Union.
the right to union representation at disciplinary inter-
views is provided for all employees except probation-
ary employees. Since Achord was still in probation-
ary status at the time of her discharge, Respondent
asserts that the Union has effectively waived
Achord's Section 7 right to request her union repre-
sentative at her disciplinary interview. Assuming,
without deciding the question, that a union could
waive a probationary employee's Section 7 right to
request her union representative at a disciplinary in-
terview, the collective-bargaining agreement is very
unclear as to whether such a waiver was intended by
the parties to the agreement. Article IV of the agree-
ment grants to all employees in the unit, and proba-
tionary employees are included in the unit descrip-
tion, the right to request the presence of a union
representative "at the time the employee is notified of
the suspension or discharge." Article VI of the agree-
ment, however, which is entitled "seniority." states
that "[a] new employee shall undergo a one hundred
twenty (120) day probationary period, during which
he shall not be entitled to the protection of the provi-
sions of this agreement." T'here is no indication in the
record, either from the agreement itself or subsequent
arbitral interpretations of the agreement, that the ex-
clusion of probationary employees from the protec-
tion of article VI was also intended to apply to the
right of all employees to request a union representa-
tive at a disciplinary interview, as provided in article
IV. In the absence of such evidence, I reject Respon-
dent's contention as being wholly without merit.
Accordingly, I would find that Respondent vio-
lated Section 8(a)( I) of the Act by refusing employee
Achord's request for a union representative at her dis-
ciplinary interview and compelling Achord to appear
unrepresented at such interview.
1006