Climax Molybdenum Co. v. N.L.R.B.
| Decision Date | 20 September 1978 |
| Docket Number | No. 77-1088,77-1088 |
| Citation | 584 F.2d 360 |
| Parties | 99 L.R.R.M. (BNA) 2471, 84 Lab.Cas. P 10,829 CLIMAX MOLYBDENUM COMPANY, a division of Amax, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Tenth Circuit |
William F. Schoeberlein (Charles W. Newcom, Denver, Colo., on the brief), of Dawson, Nagel, Sherman & Howard, Denver, Colo., of counsel; Daniel R. Hale, Denver, Colo., for petitioner.
Joseph P. Norelli, Washington, D. C. (Allison W. Brown, Jr., John S. Irving, John E. Higgins, Jr., Carl L. Taylor and Elliott Moore, Washington, D. C., on the brief), for respondent.
Before McWILLIAMS, BARRETT and McKAY, Circuit Judges.
Climax Molybdenum Company (Climax) petitions for review of a decision of the National Labor Relations Board (NLRB) that Climax had violated § 8(a)(1) of the National Labor Relations Act (the Act), 29 U.S.C. § 158(a)(1), by interfering with employees' exercise of § 7 rights, 29 U.S.C. § 157. Climax was ordered to cease and desist from refusing to allow a union representative to consult with or interview employees prior to investigatory interviews, which the employees reasonably believe will result in disciplinary action.
The facts are undisputed. In August of 1974, two Climax employees, Patrick Harrison and Max Salazar, became involved in an altercation while working in an underground mine. Upon learning of the fight, the employees' supervisor advised them that the matter would be investigated the next day. George Egglezos, acting vice president of the Oil, Chemical and Atomic Workers Union (Union), was advised by Climax that the investigatory meeting would be held but he was not informed of the names of the employees involved nor the nature of the altercation. Neither Harrison nor Salazar requested to consult with their Union representative. The following morning, upon arriving for work, Harrison and Salazar were notified by Climax that an investigatory interview would soon take place. Egglezos requested of Climax that he be permitted to hold a conference with the two employees on company time prior to the investigatory meeting. This request was denied by Climax. The record indicates that Climax officials knew nothing more about the altercation than did the Union representative.
At the commencement of the investigatory interview, which was attended by the two employees, Egglezos, two other Union officials, and by three Climax representatives, Egglezos advised Harrison and Salazar that they did not have to say anything. They were, however, willing to cooperate. Each, accordingly, related his version of the altercation.
Following the interview, Climax officials conferred. They agreed to give Harrison and Salazar only verbal warnings. The employees had been previously advised by Egglezos that they could possibly be discharged. No grievances were filed by the employees as the result of the interview.
In September the Union filed unfair labor practice charges against Climax, charging that Climax had unlawfully threatened employees Harrison and Salazar with reprisals because of their involvement in protected concerted activity. The NLRB thereupon issued a complaint. A hearing was held before an administrative law judge. The law judge dismissed the complaint, holding that the Act does not require that a union representative be allowed to confer with an employee prior to the employee's investigatory interview. The law judge's decision was appealed. The NLRB, in a 3-2 decision, reversed, holding that Climax had violated § 8(a)(1) of the Act.
The issues presented on review are: (1) whether it is a violation of § 8(a)(1) to deny a union representative's request to meet with employees on company time prior to an initial investigatory meeting which the employees reasonably believe may lead to discipline, and (2) whether, even if there is a § 7 right of prior consultation, a violation can be found where the expressed purpose of the union representative in seeking prior consultation is to direct employees not to cooperate in the investigation of the job misconduct, thereby making investigation impossible.
Climax argues that its refusal to permit the Union representative to consult with employees Harrison and Salazar on company time prior to the investigatory interview was proper. We agree.
The touchstone for resolution of this dispute is a recent United States Supreme Court decision entitled National Labor Relations Board v. J. Weingarten, Inc., 420 U.S. 251, 95 S.Ct. 959, 43 L.Ed.2d 171 (1975). Weingarten is the sole authority relied upon by the NLRB in reaching its decision; furthermore, it is the primary authority urged by both Climax and the NLRB. In Weingarten, it was held that § 7 of the Act affords an employee the right to insist on the presence of a union representative at an investigatory interview with employer personnel which he reasonably believes will result in disciplinary action. There, an employee, who was being interrogated about thefts from her employer, asked for and was denied the presence of her union representative at the questioning session. The Supreme Court, in a divided opinion, held that this denial of representation During an investigatory interview violated the employee's rights as defined in § 7 of the Act; i. e., the right "to engage in concerted activities for mutual aid and/or protection." The Court agreed with the NLRB's position that § 7 creates a right in an employee to refuse to submit to an investigatory interview without union representation, within these "contours and limits":
First, the right inheres in § 7's guarantee of the right of Employees to act in concert for mutual aid and protection.
Second, The right arises only in situations where the employee requests representation. In other words, the employee may forgo his guaranteed right and, if he prefers, participate in an interview unaccompanied by his union representative. Third, the employee's right to request representation as a condition of participation in an interview is limited to situations where the employee reasonably believes the investigation will result in disciplinary action.
Fourth, Exercise of the right may not interfere with legitimate employer prerogatives.
Fifth, the employer has no duty to bargain with any union representative who may be permitted to attend the investigatory interview. (Emphasis supplied.)
420 U.S., at 256-259, 95 S.Ct. at 963-965.
The message of Weingarten is clear. An employee who is requested to attend an investigatory interview is entitled to be accompanied by his union representative inasmuch as such activity is protected under § 7. Weingarten does not, however, mandate that a union representative must be present under any and all circumstances. The Court's adoption of the "contours and limits" of that right clearly support this position. In the instant case, the NLRB has enlarged upon the Weingarten holding to the extent that it includes pre-interview situations. We do not believe that Weingarten can be interpreted so broadly. Thus, we hold that Weingarten does not control here.
There are several factors which lead us to conclude that Weingarten cannot be construed to cover the situation presented here. First, the right recognized in Weingarten of Employees to act in concert for their mutual aid and protection, through representation of a union official at the hearing, arises only upon request by the employees. At no time did Harrison and Salazar request that a union representative be present.
Weingarten holds that the Employee must request representation. Neither Harrison nor Salazar manifested any interest in consulting with their union representative prior to the investigatory interview, notwithstanding a time lapse of 171/2 hours between the time they were advised of the pending investigation and the time it took place. To hold that an employer must permit employees to consult with union representatives on company time, when the employees could have, but elected not to, consult with their union representatives on their own time is to place a harsh and unfair burden upon the employer. Harrison and Salazar were not in anywise impeded from apprising...
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