NLRB v. WEINGARTEN, INC.
Legal provision: National Labor Relations, as amended
Argument of Patrick Hardin
Chief Justice Warren E. Burger: We'll hear arguments next in number 73-1363, National Labor Relations Board against Weingarten.
Mr. Hardin, you may proceed whenever you're ready.
Mr. Patrick Hardin: Mr. Chief Justice and may it please the Court.
This case like the one just argued presents the Court with the issue whether it is an unfair labor practice for an employer to refuse an employee's request for the presence of her union representative at an investigatory interview which the employee reasonably believes will lead to disciplinary action.
And I'd like to begin by pointing out to that there are no cross-petitions in this case, and that to the propriety of the fifth -- of the labor and the Fifth Circuit determination that the right to union representation, as a part of the right to bargain collectively arises at the point where discipline is to be imposed is an issue not directly presented in this case.
We are here concerned with a different part of the statutory rights conferred by Section 7.
Specifically, they are the rights to act in concert from mutual aid or protection.
The Board is held that that grant of statutory right, which is to be distinguished from the right to act in concert for the purpose of collective bargaining, does grant to the employee the right to be represented at an investigatory interview.
I'm going to state the facts --
Justice Potter Stewart: It has to be -- you have to say this, this involves engaging in concerted activities.
Mr. Patrick Hardin: Yes, that must be --
Justice Potter Stewart: Not just act in concert, but --
Mr. Patrick Hardin: Concerted activities --
Justice Potter Stewart: The statute says to engage in other concerted activities.
Now, that's a little different arguably.
In other words, if you're going to rely on the statutory language, I think it's quite important that we keep our eye on what the statutory --
Mr. Patrick Hardin: You're quite right.
You're quite right.
It must be concerted activity, and the Labor Board of course has found that one employee stretches a hand to the other to seek that mutual aid, they are engaged in concerted activity or are seeking to do so a right which the Board can protect.
I think that a statement of the facts will help to illustrate for the Court very clearly the value to the employee of the right which the Board has recognized in this case as it did in Quality.
J. Weingarten Company operates a chain of about 100 retail stores in the Houston, Texas area.
Like most large retail and distribution enterprises, it maintains a centralized security apparatus, one of the purposes of which is to investigate suspected employee theft.
Leura Collins is an employee of J. Weingarten and has been employed since 1961 in a number of stores working at lunch counters or in the lobby departments, a more sophisticated prepared food takeout arrangement.
In June of 1972, Mrs. Collins was working at store number 98, and in June of 1972, information came to the company's attention which suggested that Mrs. Collins was engaged in dishonest activities.
The record does not disclose either the source of the nature of that information.
The company reacted to it by dispatching one of its Loss Prevention Specialists, Mr. Hardy to conduct an investigation.
And on June 15, 1972, Mr. Hardy began two days of plain close surveillance of the operation of the lobby department at Store No. 98.
He saw nothing which indicated any evidence of wrongdoing by the employees.
And on the third morning, which would have been the 18th, he introduced himself to the store manager at Store No. 98, Mr. York.
The two have not previously known one another, and the Loss Prevention Specialists identified himself as a member of the central security bureau of the employer's operation.
He reported that he had conducted an investigation into the lobby department, and had found no evidence of any employee dishonesty.
The manager responded by saying “why just this very morning, another employee in the lobby department reported to me that yesterday, Mrs. Collins took a $3.00 box of fried chicken from the lobby department, and put only a dollar in the till.”
Well, the Loss Prevention Specialists decided to check that out.
He summoned the employee who had so reported to the manager, Mrs. Moody, and he interrogated her about the allegation of -- that Mrs. Collins had stolen $2.00 worth of chicken the day before.
Mrs. Moody confirmed the story, and then, Mrs. Collins was summoned to an area near the manager's office.
There, she was confronted with the Loss Prevention Specialists from headquarters, who began to interrogate her about the general acts of dishonesty.
Mrs. Collins asked if she could have the assistance or the presence of her union representative.
The store manager said “No.
This is a private matter between you and the company.”
With respect to the questioning about the box of chicken on the preceding day, Mrs. Collins stated “We had been out of small boxes, so I took a small $1.00 quantity of chicken, put it in a larger box, paid the dollar for it and left the store.”
The Loss Prevention Specialists went to check this out and he determined that in fact, the store had been out of smaller boxes on the preceding day, and that the employee who had reported on Mrs. Collins didn't know how much chicken she'd put in the large box.
He went back to the interview and said “The interview is terminated.
Your story checks out.”
At that point, Mrs. Collins became very emotional and began to cry, probably tears of relief.
But in any rate in her relief, she says “I've worked for Weingarten's for 11 years and I've never taken anything that I've paid for, except the free lunches.”
The Loss Prevention Specialists and the manager professed to be astonished that anyone was getting free lunches at Weingarten's, and they immediately resumed the interrogation. [Crowd laughing]
Justice William O. Douglas: But what's this title, Loss Prevention Specialists, that's certainly a high sounding, (Inaudible)?
Mr. Patrick Hardin: That's the company's terminology, Your Honor.
The -- Mrs. Collins again asked for the assistance of her union representative.
She insisted that she had taken lunches because it was the practice of all the employees, including the lobby department manager to do so, and she indicated that she would not sign a statement which the Loss Prevention Specialists was then typing by which she was to acknowledge a debt to the company of $160.00 for lunches which she shouldn't have eaten.
The Loss Prevention Specialists then made some further inquiries and discovered that no one at company headquarters could say for sure that there was or was not a policy permitting free lunches at Store 98.
Justice Potter Stewart: At the previous store, there clearly had been --
Mr. Patrick Hardin: They clearly had been at the lunch counter at the previous store where she --
Justice Potter Stewart: -- Store No. 2 or whatever.
Mr. Patrick Hardin: That's right, Store No. 2.
When she had transferred the Store No. 98, the company apparently thought that she and all employees had been instructed that there would be no free lunch, but there is no evidence in the record --
Justice Potter Stewart: In the lobby type store.
Mr. Patrick Hardin: That's right.
The record does not disclose affirmatively that such instructions every were given, and it does show that all of the employees in the lobby department, including an employee titled lobby department manager were taking free lunch everyday that he worked.
The interview was terminated.
Later in the afternoon, the manager discovered that in fact all the employees in the lobby were getting free lunches, and he the next day, issued an order directing that it'd be stop.
Meanwhile, he sent Mrs. Collins home, gave her the afternoon off because she was so distraught, and asked that she not discussed the interview with anyone.
She discussed it with the union representative and that lead to the filing of charge with the National Labor Relations Board.
The general counsel issued a complaint against the company alleging specifically that the company had denied Mrs. Collins' request for the assistance of a union representative during these interviews, and that the denial was a violation of Section 8 (a) (1).
Justice William H. Rehnquist: Nothing more ever happened to Mrs. Collins?
Mr. Patrick Hardin: That is correct.
Justice William O. Douglas: She came back to work?
Mr. Patrick Hardin: She returned to work. She was paid ultimately for the four hours she taken off the preceding afternoon, and so far as the record discloses, I think that she is still working.
Justice Potter Stewart: And so, what was the Board's order, there was no reinstatement, and that's the order necessarily.
Mr. Patrick Hardin: No, of course not, nor was there in the Mobil Oil case which had been discussed this morning.
It's a direction to the company to cease and desist from interrogating employees unless there are accorded the right to have the assistance of the union representative.
Justice Potter Stewart: Is there any -- these, the facts because of what you just told us, well less little more mild in this case than in the previous one.
But is the issue, the identical issue, is there any difference at all?
Mr. Patrick Hardin: It is identical in this case to the situation that the woman in Quality have been into was asking for the assistance of her union representatives, Quality --
Justice Potter Stewart: So we have there, the representatives --
Mr. Patrick Hardin: -- representatives themselves being disciplined for their efforts to provide --
Justice Potter Stewart: But, it's basically the same issue.
Mr. Patrick Hardin: It is basically the same issue.
It is precisely the same.
Justice Potter Stewart: Yes, precisely the same, that is correct.
Mr. Patrick Hardin: The Board adopted the decision of its administrative law judge, which applied the then recent Quality Manufacturing decision and found that there had been concerted activity for the purpose of mutual aid and protection, and then addressed the question whether Mrs. Collins' fears that the interview might lead to discipline were reasonably based in all the circumstances.
The decision takes particular note of the fact that these events occurred in the retail industry, and that Weingarten in common most members of that industry, most important is in that industry, regard employee dishonesty were proved to the employer's satisfaction to be an unpardonable offense the discipline for which ordinarily is discharged, unless there are exceptional litigating circumstances.
With that in mind and because the contract here provided that the usual system of warning notices was not available to an employee who was deemed guilty of theft to the employer's satisfaction, the law judge concluded that Mrs. Collins' manifest fears had indeed been reasonably grounded and objective circumstances, and that she was entitled either to have the assistance of her union representative at that interview, or to have the company terminate the interview and forgo the benefit of what information it might get from interrogating her.
The Fifth Circuit refused to enforce the order of the Board.
It noted first in apparent conflict or inconsistency between the result in this case and the result which that court had disapproved in the earlier Texaco decision noted the apparent inconsistency between the result here and its own earlier Texaco decision.
But then, coming directly to grips with the Board's rational in this case, that is the proposition that the language of Section 7 itself confers the right, the court rejected that rational apparently and the opinion is not entirely clear, but apparently, not because it regarded its own earlier decisions as controlling, but because it disagreed with the Board about the need to extend that kind of protection to employees.
The court says and this is from page 7 (a) of our petition for certiorari in this case, the court says while a basic purpose of Section 7 is to allow employees to engage in concerted activities for their mutual aid and protection, such a need does not arise at an investigatory interview to extend to the scope of the act's protection to such preliminary contacts between an employee and his employer would be to apply an overbroad interpretation of Section 7, without explanation as to why or direct explanation as to why it regarded the protections as unneeded and the construction of the statute which the Board had settled on as being overbroad.
Now, the decision of the Fifth Circuit is defended in this Court, basically upon two grounds.
The first, there is the argument that the right conferred cannot be logically found within the confines of the statute itself.
And secondly, its argued that the Board's decision is basically unwise or that the cost of securing these employee rights will be so far outweighed by the -- the advantages of securing these employee rights will be so far outweighed by the costs to the employers but it's unwise to grant them in the first instance of varying on that last argument is that the Board hasn't really clearly told us it made that balance, and so you can affirm it even if it's the right balance.
Chief Justice Warren E. Burger: Do you think that that such an interview is this, the preliminary interview where you do not conceive the right have a friend there that the employee could make statements that would be incriminating, and now distinguishing, your case is not part of the state, it's not a governmental --
Mr. Patrick Hardin: Incriminating literally, you mean?
Chief Justice Warren E. Burger: Yes.
Mr. Patrick Hardin: It certainly is possible that an employ --
Chief Justice Warren E. Burger: In the Fifth Amendment sense.
Mr. Patrick Hardin: Yes, it is not only possible, it is fairly common for an employee caught in the toils of the employer's security apparatus, not only to make incriminating statements, but to see them written out and then design them.
But the --
Justice William H. Rehnquist: There's nothing undesirable about that, though as if the statements are truthful?
Mr. Patrick Hardin: Certainly not, certainly not.
The interest of the employee and the interest of the employer are basically in harmony in such a circumstance.
Each has an interest in seeing that the truth, whatever it is, is disclosed, and in preventing overreaching by the interrogator which leads to confessions by employees to events which they may or may not be guilty of, but -- which they are not guilty in fact, I mean to say.
Chief Justice Warren E. Burger: Now, I take it you distinguished the situation to which you just responded from the typical official incrimination.
On that ground, I suggested that you are not part of any governmental apparatus; this is a private contractual arrangement between an employer and an employee.
And that in the traditional sense, the Fifth Amendment protections do not reach that, is that --
Mr. Patrick Hardin: There's no contention whatever in this case that the employer's actions are colored by any state actions, notions, whatever, and the Board in its discussion of these issues has never casts its discussion in constitutional terms or analyzed the issues by reference to the decisions of this Court in the area of Fifth Amendment protections.
The right which the Board is seeking to protect to your springs from the statute and has been accommodated as best of the Board can accommodate that right to the realities -- industrial relied.
Justice William O. Douglas: I gather as to concerted activities or what the Board appeals to is the very special deference to Board judgment as to what does constituted concerted activity.
Is that it?
Mr. Patrick Hardin: That is correct, Your Honor.
Justice William O. Douglas: And that -- well, in terms of judicial review of Board determination of what constitute the concerted activity, what's the test?
Mr. Patrick Hardin: The --
Justice William O. Douglas: Because I gather what the Fifth Circuit has done here say not too clearly, that doesn't accept.
Mr. Patrick Hardin: Well --
Justice William O. Douglas: As within a Board competence -- this definition --
Mr. Patrick Hardin: I think, we have to separate two things in this discussion Your Honor.F
irst of all, the question of how much deference the Board's view about the meaning of the law is entitled too.
It is entitled to great weight, but it is certainly not that of standard of review as not so rigorous as -- or so confine as it would be in the case of an examination for abuse of discretion or something of that sort.
But the second point which has to be remembered here is that a part of the process of judging in these cases has been the process of adopting the perceived statutory right, so that it can function in a useful way in the real world.
And it's that part of the Board's decision making function which is entitled to very, very great deference in reviewing courts.
And here, the Board clearly has in its course of decision, taken a primary statutory right, a right that I have stated before is described in the disjunctive from the right to bargain collectively.
And it has tailored that right in an effort to permit employees to have that mutual aid or protection at a point where clearly is needed as Mrs. Collins situation attests.
But it has been limited.
We're not here arguing as Mr. Jenkins in the last case appeared to think but there is an absolute right to union representation at all times under all circumstances.
The right in the Board's view is available first --
Justice Byron R. White: Mr. Hardin, that Board isn't taking that position but if this all turns around the word “concerted”, and it's concerted because one employee is holding on his hand to the other, I don't know were your limits are when he doesn't fear discipline is pure investigation or is just a conversation.
And he holds out his hand to the other they want somebody along with them.
Mr. Patrick Hardin: Well, that -- the accommodation of admittedly conflicting interests in that area is one --
Justice Byron R. White: Do you say that that --
Mr. Patrick Hardin: -- committed to the Board --
Justice Byron R. White: -- won't happen as long as the Board sets it.
Mr. Patrick Hardin: [Laughter Attempt] I wasn't going to say that.
I was going to say, that the entire matrix of law that exist under the act today is the consequence of a serious of adjustments between conflicting rights of employees on the one hand and needs of employers on the other hand.
Justice William J. Brennan: And you say as to that in the real world which sets the Board's responsibility they have in mind would it makes this kind of determination.
This is well within Board's competence to commit.
Mr. Patrick Hardin: -- and well within its province to decide.
Justice William H. Rehnquist: Mr. Hardin, this morning, I think you were here when we had this case in the Court of Appeals for the District of Columbia Circuit argued about Truck Drivers case, and there of course the Court of Appeals upset a determination by the Board and the Board is here, Mr. Kronenberg, you seen him have it reinstated.
And you're here basically in the same capacity from the different decision this afternoon.
Do you see any difference in the standard of review of the Board's exercise of discretion in the case this morning that should be applied by this Court on the case you're arguing?
Mr. Patrick Hardin: In any difference in the standard of review?
Justice William H. Rehnquist: Yes, that the Court should apply to a determination by the Board.
Mr. Patrick Hardin: I think the only useful distinction is that in this morning's case, the Board was writing against a background of considerable judicial ruling by this Court in the number of others.
In this afternoon's cases, we're dealing perhaps not with the tabula rasa, but with province where the Board is still making the first pronouncements, and I think that is a factor which can legitimately affect scope of --
Justice William H. Rehnquist: If you were these judicial decisions in this area than they were in the area this more in this Court.
Justice Lewis F. Powell: Mr. Hardin, did you find anything in the legislative history of Section 7 that supports your view of it today as embracing within the prayer's concerted activities the type of meetings and conferences we're talking about?
Mr. Patrick Hardin: No, Your Honor.
Neither we, nor any other party has been able to take any comfort from the legislative history in this matter.
As you know --
Justice Lewis F. Powell: Flat silence?
Mr. Patrick Hardin: Virtually so.
As you know, the statutory language came into the National Labor Relations Act via the Railway Labor Act and the National Industrial Recovery Act, and its precise language received relatively little attention from the drafters.
Justice Potter Stewart: The precise language having to do with representation appears in another part of the Act, didn't it?
Mr. Patrick Hardin: The precise language having to do --
Justice Potter Stewart: That is the right to have union representation or union representative at the time of a grievance.
That appears somewhere else in the Act didn't it?
Mr. Patrick Hardin: It's in the proviso to 9 (a).
Justice Potter Stewart: Proviso to 9 (a)?
Mr. Patrick Hardin: That's correct.
Justice Potter Stewart: And in view of that very precise language at the time that the Congress was focusing on this problem, don't you suppose that that could be argued as the metes and bounds of what Congress intended to give by way of representation?
Mr. Patrick Hardin: Well --
Justice Potter Stewart: The language of history certainly shows, I would -- either as I remember it and I don't remember it specifically with respect to this problem that 6 and 7 had to do is the right to get together in a group and to organize, first to collectively bargaining and secondly, for various other purposes, but not involving, not that all involving, and that suggesting that this involved individual representation at the time of an interview between an employee and his employer.
And since so for as that's covered or dealt with or focused upon by the Congress, you'll find that in the proviso to 9 (b), won't you?
Mr. Patrick Hardin: Well, of course, the proviso to 9 (a) --
Justice Potter Stewart: 9 (a), excuse me.
Mr. Patrick Hardin: -- was substantially modified during the 1947 amendments.
The original version of that if I'm correct, provided that the individual employee was free to present a grievance to his employer.
The modifications in 1947 added to that the right to have adjusted, so that the substantial part of the right to deal individually with respect to grievances as was added during the 1947 modifications to the Act.
And at that time, I think it is very pertinent to note, this issue had received only the least adumbration, only one decision from the Board had dealt in this area so far as our research discloses, and that was the case where the Board expressly pretermitted dealing with the question whether an employee has an individual right to representation, and of course was the Ross Gear & Tool decision.
Well, the Seventh Circuit somewhat put the development of the law of the track by viewing the cases raising the issue which the Board had pretermitted, but then instead of remanding the case so that the Board could answer that question, the Seventh Circuit decided it and probably wrongly.
At the same time that was happening, the amendments to the Act of 1947 were putting the prosecution function in the hands of the independent general counsel.
And so far as we can tell from the reported general counsel's decisions, for the next 20 years or so, apparently in deference to this view of the law stated by the Seventh Circuit in Ross Gear, the general counsel refused the issue in complaints in cases of this sort.
So that we only return to this arena with the issuance of the Board's decision in Quality Manufacturing -- in Texaco, and that point, the Fifth Circuit because persuaded by the Board's view that at least at the point were discipline is to be imposed by the employer, the employee has the right under the collective bargaining part of Section 7 to have the union representative present, and the union representative has the right to be there.
It disagreed with the Board however, that the facts in that case presented in occasion where discipline was to be imposed, and treated it as instead as being merely an occasion where the employer intended to interrogate the employee.
Justice Potter Stewart: Mr. Hardin, you're not contending or are you that this comes out of the collective bargaining part of Section 7?
Mr. Patrick Hardin: No, we are not.
We are not.
Justice Potter Stewart: Because there was a goody of such talk in the briefs, I remember as I read on it.
Mr. Patrick Hardin: Not in our brief.
Justice Potter Stewart: Well, we could -- so this is not collective bargaining?
Mr. Patrick Hardin: No, this is not collective bargaining.
You can't have collective bargaining until there was something to bargain about, and the Board's view affirmed that to some extent at least by the Fifth Circuit is that something to bargain about arises at the earliest where the employer calls the employee and to impose discipline.
This right --
Justice Potter Stewart: Even a grievance – even a complain that that of kind of grievance is not generally known as collective bargaining isn't it, it's something else.
Mr. Patrick Hardin: I --
Justice Potter Stewart: In any event, we don't need to --
Mr. Patrick Hardin: We don't have to reach that, but the statutory language requires bargaining about the meaning of an agreement during its term, as well as about the terms which are to be settled on the --
Justice Potter Stewart: So-called minor dispute.
But this is not collective bargaining, you're not contending --
Mr. Patrick Hardin: We are not contending that the rights here arise out of collective bargaining.
Justice Potter Stewart: So, through representatives doesn't have any and that language is inapplicable here?
Mr. Patrick Hardin: That's correct.
Justice Byron R. White: Could I ask you what the Board rule is under the proviso if there is a grievance in the employee who wants to adjust it by himself with the employer?
May he bring -- is he entitled to have somebody else come with him even though it isn't the union?
Mr. Patrick Hardin: Yes.
Although, I think that Mr. Dunn now has by reference to the Houston decision is correctly stated in the law that the -- he may have the next friend.
Of course, the union must be permitted to be present and the union also has the statutory right to block, or at least to posed all the was to the arbitration machinery any settlement which it regard his side contrary to the terms of its own collective bargaining agreement now.
Chief Justice Warren E. Burger: Mr. Martin.
Argument of Neil Martin
Mr. Neil Martin: Mr. Chief Justice and may it please the Court.
In exploring upon what basis of the Labor Board now construes at Section 7 that creates an affirmative right for an employee.
I believe it's interesting to look at what the Board does not cite as authority.
First of all, there is no citation or articulation of the legislative history as been stated before, the concentration the legislative history, both for the Wagner Act and the Taft-Hartley Amendment was directed at the inequality of employees before their employers on the basis of economic pressure.
It is this thrust as Senator Wagner states say in the legislative history that was sought to be counterbalanced.
They were sought to be an adjustment of an employees and employer's right to deal economically one with the other.
Admittedly, Section 7 does not protect all concerted rights or all concerted activities.
No one would state that illegal concerted activities are protected by a Section 7.
Not every employer contact with an employee was sought to be protected by Section 7.
We submit that based upon the overall view of the legislative history, it is the economic pressure that an employee was unable to exert against his employer on an individual basis that is considered, and is this economic pressure that should be allowed to flow between parties under the statute of Section 7.
As NLRA have stated, there is no collective bargaining in a pre-decisional fact-finding investigation.
There is no decision here that an employer who deals with employee merely to elicit facts is circumventing the provisions of Section 8 (a) (5) of the Act.
In fact, the legislative intent does not manifest an employee may control the employer's avenue of gaining information concerning his operations.
The idea of mutual aid or protection has been discussed.
What is a dichotomy and perhaps an anomaly is the fact that the Board is taking the position that these collective interest do not rise to a level sufficient to permit the union to be present, but do rise to a level who will permit the employee to institute representational assistance if he so desired.
It's difficult for us to understand why if the union requests the representation, it is not permitted, and while the employee requested it is.
It seems to us that the same rights would be involved regardless of the party requesting representation.
The Labor Board has imputed or implied that an employee when he re-seeks the aid of his representative or another employee is engaged in protected concerted activity, this implies that employee is not seeking self protection or protection against questions which may be embarrassing or particularly proving that that he is seeking to in the future make a situation where other employees will be accorded similar treatment.
Now, this is a factor which has not been explored by the record, but it is imputed to an employee by the Labor Board that when he does request that a union representative be present, it is for concerted activity, when in fact it may be for self-preservation as oppose to any effort or motivation on a concerted basis.
It's been stated that the contracts in many major companies provide for representation of an employee in an investigatory interview.
The fact that this is in industrial situations today, we believe to be evidence of the fact that the right to bargain collectively for the right of representation of employee at an investigatory interview has not been diluted by the prior position of the Board that no right existed in the context of a fact-finding investigation.
In fact, the Board has not taken the position today that any of its prior decisions had been reversed.
In a prior case of date and typographic where the employer is sought the question employees about errors that they made in proofreading.
The Trial Examiner of the Labor Board found that there was no concerted activity and the Board adopted that position, yet the Board has not attempted to reverse that decision or other decisions which have created this dichotomy between investigatory and disciplinary reviews.
The idea that an employee is statutorily protected from interviews by his employee, presupposes that there is an adversary condition, that there is a situation where an employee is immediately placed under suspicion or under fear of adverse consequences.
And to permit an employee's speculation as to what an employer may do with information that he gathers is to take the employer his unfair labor practice completely out of his intent or purpose.
For an employee, may wrongly suppose that an employee's questions and employer's questions may result in disciplinary action.
The case that's before this Court involved a suspicion theft.
The case that involved the Labor Board decision of Texaco Los Angeles Terminal involved the situation where an employee refused to drive a piece of equipment which he deemed to be defective.
In that case, the Trial Examiner found that there was no violation of the Act because the employee on one point had no reason to believe that his job status was in jeopardy.
It is difficult for us representing employers to determine which belief of the Labor Board is to be followed, where they adopt decisions by administrative larger as use on a Trial Examiners that questions concerning insubordination do not raised the level of reasonable fear, whereas they say that questions concerning thefts do raise that fear.
It's been stated that the prior --
Justice Potter Stewart: In the previous case, we had what seemed to be insubordination case, sassing Mrs. Gerlach or whatever the name was, and the Board came out the same way saying that that created a reasonable fear on behalf of the employee to extent that she was entitled to have a union representative present if she wanted to.
Mr. Neil Martin: Yes, but as we understand it --
Justice Potter Stewart: o that Board as I understand in these two cases has made the distinction that you've just suggested.
Mr. Neil Martin: No, the cases appeared to exist coequally without the distinction being drawn between while one questioning concerning insubordination would not raised reasonable fear, and while other questioning concerning or insubordination would raise that fear.
The test of reasonable fear of an employee has no relationship to the realities of the circumstances.
There is no relationship between the results of the interview and whether an employee may reasonably fear that his job sasses in jeopardy.
Justice Potter Stewart: Do you Mr. Martin accept the law of the National Labor Relations Board that at a concededly disciplinary interview, an employee has a right to a fellow employee or a labor representative?
Mr. Neil Martin: No Your Honor, I do not because there is no statutory basis for it.
It has been created in a situation of the only decision I know which is of the Texaco decision of the Fifth Circuit in 1969.
In that particular context, the Labor Board found a violation of 8 (a) (1) because the employer violated the employee's right to union representation, and it was a disciplinary interview.
Justice Potter Stewart: Right.
Mr. Neil Martin: Upon appeal, the Fifth Circuit said that they found no basis upon which an employer is required to permit an employee represent to be present, and further that the investigation was not disciplinary, but it was an investigatory.
Justice Potter Stewart: Well then --
Mr. Neil Martin: It is that dichotomy which has been created because of the decision of that court.
Justice Potter Stewart: Yes, but you're complaining about the dichotomy that I had a -- which would suggest that you might be accepting the validity of it on the disciplinary.
Mr. Neil Martin: Well Your Honor, the only -- in the context of deciding upon which basis an employer will permit an employees' request and will not, it is far more comfortable for an employer to face the disciplinary interview dichotomy than it is the situation which is now pressed upon us by the Labor Board.
Justice Potter Stewart: Now we're dealing here where the question is what does the statute require?
Mr. Neil Martin: We're of the position that for the statute does not require union representation, an employee's request for union representation at either --
Justice Potter Stewart: Either kind or area.
Mr. Neil Martin: -- an investigatory or a disciplinary interview.
Justice Potter Stewart: Or if anything until and unless --
Mr. Neil Martin: Until the man --
Justice Potter Stewart: -- the disciplinary action and there's a grievance.
Mr. Neil Martin: Correct.
There has been previous decision involving what was termed inchoate grievance.
That is a pre-decisional matter.
And the Board again found that disciplinary action was so remote that it did not want finding of a violation, and we would take the position that the dichotomy is not soundly based in statute, but it is far more of a reasonable standard for both of the employer and the employee to rest upon, then a decision which is based upon the employees.
Justice Potter Stewart: But again, you're confusing me.
If you're -- I don't know if you're taking the dichotomy or if you're saying --
Mr. Neil Martin: We --
Justice Potter Stewart: -- no representation the statutory require it at all in any interview.
Mr. Neil Martin: That either, an investigatory or disciplinary interview.
That is our position.
Justice William J. Brennan: If this is --
Justice Potter Stewart: And then, you don't have to worry about any dichotomy?
Mr. Neil Martin: That's correct.
Justice Thurgood Marshall: Don't you have to take that position in this case where they call the man who said I understand you steal it.
Mr. Neil Martin: I'm sorry, I did not catch all of your questions.
Justice Thurgood Marshall: Don't you have to take that position on the facts in your case where this lady was brought in and said we're investigating you for stealing?
Mr. Neil Martin: The --
Justice Thurgood Marshall: That's a little investigatory, isn't it?
Mr. Neil Martin: Oh, yes and that's the position that both of the employer and the Labor Board have taken consistently that it was for purposes of investigation.
Justice Thurgood Marshall: So, you have to take that position if you want to win.
Mr. Neil Martin: Well the case -- the question concerning disciplinary action, we do not feel is before us on our fact situation, Your Honor.
Justice Thurgood Marshall: Why?
Because you didn't discipline them?
Mr. Neil Martin: Because the purpose of the interview was not to determine the extent of discipline, nor was there a decision made that discipline would be taken before the interview began.
Justice Thurgood Marshall: But what was the purpose of the interview?
Mr. Neil Martin: The purpose of the interview was to determine if there was a basis for the suspicions which had been created in the mind of the employer by a fellow employee of Mrs. Collins, who was under the impression that she had taken more chicken than she had paid for.
But if the record is clear that neither party that was present for the employer had authority to make any decision concerning discipline based upon the facts.
Justice Thurgood Marshall: Well, was this interview before the employer or before this man and was protecting, stealing, assemble as his time?
Mr. Neil Martin: The Loss Prevention Specialists is a broad title which compasses more than merely thefts.
In the retail industry, there is a phrase called “shrinkage” and that can occurred from many reasons.
An investigation --
Justice Thurgood Marshall: Including stealing?
Mr. Neil Martin: Including stealing.
Justice Thurgood Marshall: Breakage would be --
Mr. Neil Martin: Breakage or items not shipped in transit.
There'll be many reasons why a loss would present aside from any employee thefts.
Justice Thurgood Marshall: So, management had an expert there, but the lady couldn't have anybody to help her?
Mr. Neil Martin: She could have terminated the interview so -- if she had desired and have -- could've refuse to answer any questions, Your Honor.
Justice Thurgood Marshall: Could she have been fired?
Mr. Neil Martin: She can only been fired legitimately under the provisions of contract had there been just cause for the termination.
Justice Thurgood Marshall: -- you disagree with the cases before.
Mr. Neil Martin: The case that was raised -- the fact situations in a Quality Manufacturing case are distinguished -- are distinguishable from our case.
Justice William J. Brennan: Mr. Martin as I --
Mr. Neil Martin: Yes, Your Honor.
Justice William J. Brennan: -- understand you, you do take the same position as the employer in the previous case; namely, that the correct interpretation of the statute is that considered activities do not include the right of an employee to have representation as an employer will.
Mr. Neil Martin: Correct Your Honor; that's correct.
The present position of the Board besides leaving other decisions which apparently are conflicts upon their face also placed both the employee and the employee at their own peril.
It subjects the employee to a review by persons other than himself or herself in this case as to what is reasonable cause or what reasonable grounds is submitted that had this case been decided in 1971, the Labor Board would have taken the position and no violation occurred.
For an Illinois Telephone case, the employee was called in concerning alleged thefts.
He was asked concerning a thefts, he requested union representation, the company repeatedly denied that representation, and he furnished a statement admitting the thefts.
In that case, the Labor Board found that the administrative law judge's opinion was right and denied the contention of the union that representation should be afforded in investigatory stages of those cases involving misconduct, which could result conceivably in criminal prosecution.
Justice William H. Rehnquist: Well, are you contending that the rule you subscribe to is not only as beneficial to the employer, but also to the employee?
I mean it seems to me what you're saying is under the rule, you contend for under the statute, no finding could ever be made in favor of the employee, under the Board's rule occasionally it will be.
Now, if I were an employee, I'd rather have a rule that would occasionally benefit me than one that would never benefit me.
Mr. Neil Martin: Under the rule as you stated now Your Honor, the rule says where it may possibly result in the decision adversely affecting his employment status.
That permits a broad possibility of may use and under that circumstance, it would be very difficult for an employee not to be entitled to protection because he could fear that it may possibly result in disciplinary action under even the most innocuous circumstance.
What we are saying is that in an investigatory interview, there is no coercive atmosphere automatically and imputed to it.
The Board is further confused the issue by its decision in Western Electric Company.
There, the two members, Panelo and Kennedy who have voted that there was no statutory right or joined by Chairman Miller who found that where the employee had previously arbitrated the issue of whether or not an employee is entitled to representations at an investigatory interview.
That since, it had been previously decided adversely to the union in the prior arbitration cases that this was sufficient to permit the employer to deny the representation in this case, and he found that it was consistent with the statutory scheme to permit such a ruling.
So, where we have a situation where there is no basis upon which an employer's either purpose or intention or knowledge controls his own unfair labor practices, then we have a situation where speculation or subjective state of mind of the employee controls an employer's unfair labor practices.
And the role of the union representative is largely unrefined as it is now stated.
Before the court at Mobil, the Board took the position that the representative of the Union was merely there present as an advisor, as a conciliator perhaps.
If you follow the logic of the Board's position and of the statute where the union is the exclusive bargaining representative of its employees, then perhaps the union would be in the position to preclude the employer from directing any questions to the employee directly, but would have to go through the union as the exclusive representative of the employee to direct any questions concerning the employee's activities.
We would summarize by saying that investigatory interview is a premature stage at which the right of representation exists because the purpose is to merely elicit in a true fact-finding investigation the facts of the matter and not to pre-decide or to pre-seal a decision of an employer or the faith of an employee.
Chief Justice Warren E. Burger: Mr. Hardin, you have about three minutes left Mr. Hardin.
Rebuttal of Patrick Hardin
Mr. Patrick Hardin: Mr. Chief Justice and may it please the Court.
I would conclude by pointing out to the Court that the statutory language “concerted activity” is more than just language.
It defines rather broad concept.
This Court in the Jones & Laughlin case upholding the constitutionality of the statute acknowledged that it granted fundamental rights.
And the Board's decision as to what that statutory language means and what content it should be given in the real industrial world, is entitled to great weight and should be accepted if the interpretation is reasonable.
And it's reasonable here.
The Board has fashioned a rule which does not grant and absolute right, the right to the assistance arises only if there is a reasonable objective basis for the fear that discipline is to follow.
And even in that event, the employer is given the option of forgoing the interview altogether.
The Board has balanced the conflicting interests and has settled on a resolution which is well within the perimeters of the statutory language.
Here to return to Mr. Justice Rehnquist's question again, the problem here for the reviewing court is much the same as it is in the Linden and Wilder case this morning.
The Congress has left it to the Board to define the reach of the broad statutory language in the first instance.
We submit that in both these cases, the Board has reached a reasonable result, and that defines the limits of judicial review in both cases.
Chief Justice Warren E. Burger: Do you know of anything that could prevent every collective bargaining contract to contain a provision that representation would be allowed in all these circumstances -- all is formerly one to one?
Mr. Patrick Hardin: There is certainly no legal impediment, whether the parties would regard it as desirable in the context of their particular relationship, but only the parties to individual grievance can do --
Chief Justice Warren E. Burger: Maybe some differences of view and the negotiations on that.
Mr. Patrick Hardin: There might well be.
Chief Justice Warren E. Burger: But they could rate it into every contract if there was agreement.
Mr. Patrick Hardin: But that of course neglects the question whether Section 7 extends rights in this arena, not only to employees who are represented by union, but also to employees who are not.
And the statutory statement of the language in the disjunctive suggests Congress intended to grant some rights beyond the right to engage in collective bargaining through a representative.
And the Board has given content to those words here by finding that the right exists where the employee reasonably perceives that he or she needs help and seeks it.
Justice William H. Rehnquist: Under your contention that the employer couldn't by agreement with the union cause the right to be waived on behalf of an employee, could he?
Mr. Patrick Hardin: The --
Justice William H. Rehnquist: If it's a statutory --
Mr. Patrick Hardin: I believe that follows from the Board's rational Your Honor, although the Board has not expressly spoken to that point.
The union might be able to waive its right to respond when the employee ask, but the question whether the union could waive the right of the employee to ask the analysis which the Board has gone through would seem to preclude that result.
Chief Justice Warren E. Burger: Thank you gentlemen.
The case is submitted.