On Petition for Review and Cross-Petition for Enforcement of an Order of the National Labor Relations Board.
Adams, Garth, Circuit Judges and Ackerman, District Judge.*fn* Garth, Circuit Judge, dissenting.
ACKERMAN, District Judge:
In NLRB v. J. Weingarten, Inc., 420 U.S. 251, 43 L. Ed. 2d 171, 95 S. Ct. 959 (1975), the Supreme Court upheld a ruling by the National Labor Relations Board (the Board) that Section 7 of the National Labor Relations Act (the Act), 29 U.S.C. § 157, protected a unionized employee's right to refuse to submit to an investigatory interview without the presence of a union representative, where the employee reasonably believed that the interview might result in discipline. The central issue before us is whether the Board erred in construing Weingarten to apply to a non-unionized workplace. Because we find the Board's construction to be permissible, we enforce the Board's order.
At approximately 7:45 a.m. on the morning of November 15, 1978, Walter Slaughter, a laboratory technician employed by petitioner E.I. Du Pont de Nemours & Company (Du Pont), posted a "Notice to Employees"*fn1 on the canteen bulletin board before beginning work. His supervisor, Thomas Farley, was in the canteen at the time. Farley informed Slaughter that he had violated company policy by posting a notice without permission and told Slaughter to take it down. Slaughter, having previously used the bulletin board without incident, protested that Farley was interfering with his lawful right to organize and refused to comply. Farley pointed his finger at Slaughter, saying that he wanted to discuss the incident later.*fn2
Shortly thereafter, Farley telephoned Slaughter at his work station and stated that he wished to discuss the canteen incident with Slaughter at his office. Slaughter replied that he would discuss the matter with Farley only if a fellow employee acted as a witness during the interview. Farley terminated this conversation with the comment, "I'll talk to you later."
About an hour later, Farley approached Slaughter on the mill floor. Once again he attempted to initiate a discussion of the canteen incident with Slaughter. Slaughter again responded that he was willing to do so as long as Farley would allow him to "have a third party present." Following some additional discussion, Farley ended the conversation by stating, "I'll see you later."
Shortly after the mill floor conversation, Farley returned and told Slaughter to gather his personal belongings and report to the foreman's desk. This order was immediately obeyed. Subsequently, Slaughter was instructed to report to the front office, and then to the office of Maynard Ritter, the shift supervisor. These orders were likewise followed without protest. While there, Farley again tried to engage Slaughter in a discussion of the canteen posting. Slaughter's response was that he would be "more than happy" to discuss the matter, as long as he had a fellow employee present as a witness. Following this comment, Slaughter brought co-worker Jimmy Fields*fn3 into the office, offering him as a potential and willing witness. Farley refused to enter into a discussion with the co-worker present, and instead ordered Fields to return to his job assignment.
Farley then asked Slaughter whether either Maynard Ritter or Dick Robinson, an industrial relations supervisor, would be acceptable as a witness. Slaughter declined this offer, stating that both men were representatives of management. According to the Board, Slaughter thereupon sought the assistance of Sheila Wilson, a fellow employee in the accounting department, located across the hall from where they had been meeting. Slaughter stated to her that "It appears I'm going to be disciplined in some way" and asked her whether she would "be a third party" for him. The Board found that Farley then gave Slaughter an ultimatum, stating that this was his "last opportunity to discuss the incident of this morning." Farley added that Slaughter's job was now "in jeopardy."
After some further discussion, Slaughter was told that he was being dismissed until further notice, but that this action did not constitute a final discharge. With that, he was sent home.
Representatives of Du Pont continued to press Slaughter for a meeting following his suspension. Slaughter eventually did meet alone with Robinson on November 24, 1978. Thereafter, on November 29, 1978, Slaughter was recalled to the plant and discharged by Farley.
In sum, the Board found that during the six hours that followed the canteen posting incident, Farley had requested on at least four occasions that Slaughter enter into a discussion with him regarding the posting of the notice. E.I. du Pont de Nemours, 262 N.L.R.B. 1028, 1028-29 (1982). On each of these occasions, Slaughter had indicated that he would discuss the matter, but only if a fellow employee was present. The Board noted that throughout that day Slaughter otherwise obeyed without protest or delay all orders from his supervisors. Id.
Based on this evidence, the Board, affirming the Administrative Law Judge (ALJ) with modification,*fn4 found that Slaughter had a right, under Section 7 of the Act, 29 U.S.C. § 157, to insist upon the presence of an employee witness at his interview with Farley. The Board concluded that, by discharging Slaughter for asserting that right, petitioner Du Pont had violated Section 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1). The Board ordered Du Pont to cease compelling employees to participate in investigatory interviews without representation by fellow employees when the employees reasonably believe the interview may result in disciplinary action. The Board also ordered reinstatement and backpay for Slaughter.
Before this Court, Du Pont argues that the Board erred in applying the Weingarten rule to a non-union workplace and that the Board's factual findings are not supported by substantial evidence. We decline to accept either contention.
In deciding whether the Board's construction of the Act in this case is permissible, we are required by the Supreme Court to accord special deference to the expertise of the Board. We may not deny enforcement merely because we would prefer another result, or even because we believe that the Act could be read to support a conclusion contrary to that adopted by the Board. Rather, we are instructed to enforce orders of the Board so long as "'the Board's construction . . ., while it may not be required by the Act, is at least permissible under it. . . .'" NLRB v. Transportation Management Corp., 462 U.S. 393, 103 S. Ct. 2469, 2475, 76 L. Ed. 2d 667 (1983), quoting NLRB v. Weingarten, 420 U.S. at 266-67. See NLRB v. Erie Resistor Corp., 373 U.S. 221, 236, 10 L. Ed. 2d 308, 83 S. Ct. 1139 (1963); Giacalone v. NLRB, 682 F.2d 427, 430 (3d Cir. 1982).
Review of the Board's factual determinations is, of course, governed by the substantial evidence test; such findings are to be affirmed "if supported by substantial evidence on the record as a whole. . . ." 29 U.S.C. § 160(e).
Section 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1), makes it unlawful for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7." Section 7, in turn, provides, in pertinent part, that:
Employees shall have the right . . . to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . .
The Board first construed Section 7 to create a right in an employee of a unionized employer to refuse to submit to an investigatory interview without the presence of a union representative, where the employee reasonably believes the interview might result in disciplinary action, in Quality Manufacturing Co., 195 N.L.R.B. 197 (1972), enforcement denied, 481 F.2d 1018 (4th Cir. 1973), rev'd and enf'd sub nom. ILGWU v. Quality Manufacturing Co., 420 U.S. 276, 95 S. Ct. 972, 43 L. Ed. 2d 189 (1975); and Mobil Oil Co., 196 N.L.R.B. 1052 (1972), enforcement denied, 482 F.2d 842 (7th Cir. 1973). The Supreme Court first upheld the Board's construction of Section 7 in this context in NLRB v. J. Weingarten, Inc., 420 U.S. 251, 43 L. Ed. 2d 171, 95 S. Ct. 959 (1975).
In finding the Board's construction to be not inconsistent with the Act, the Court in Weingarten identified five justifications for the Board's decision. First, the Court noted that although the employee alone has an immediate stake in the outcome of the investigatory interview, nevertheless the union representative whose participation is sought would help safeguard the interests of the entire bargaining unit by exercising vigilance over the fairness and uniformity of the employer's disciplinary practices. Id. at 260-61. Second, the Court suggested that the representative's presence provides an assurance to other workers that they, too, can obtain such aid and protection if and when they need it. Id. at 261. Third, the Court stated that the presence of a representative serves the most fundamental purposes of the Act in helping to eliminate and redress the perceived imbalance of economic as well as of bargaining power between labor and management. Id. at 261-62, citing American Ship Building Co. v. NLRB, 380 U.S. 300, 316, 13 L. Ed. 2d 855, 85 S. Ct. 955 (1965). Fourth, the presence of a representative could, the Court found, assist a "fearful and inarticulate" employee to relate accurately the incident being investigated. This may prove particularly beneficial to the employer, since by helping the parties to get to the bottom of the incident more efficiently, valuable ...