Cook Paint and Varnish Co. v. N.L.R.B., 79-2557

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation648 F.2d 712
Docket NumberNo. 79-2557,79-2557
Parties106 L.R.R.M. (BNA) 3016, 208 U.S.App.D.C. 339, 91 Lab.Cas. P 12,681 COOK PAINT AND VARNISH COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Decision Date02 April 1981

Page 712

648 F.2d 712
106 L.R.R.M. (BNA) 3016, 208 U.S.App.D.C. 339,
91 Lab.Cas. P 12,681
No. 79-2557.
United States Court of Appeals,
District of Columbia Circuit.
Argued Jan. 14, 1981.
Decided April 2, 1981.

Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

Edward T. Matheny, Jr., Kansas City, Mo., with whom Linda J. French, Shawnee Mission, Kan., on brief, for petitioner.

Michael Smith, a member of the bar of the Supreme Court of the State of Washington, on motion of Paul J. Spielberg, was allowed to argue pro hac vice for respondent (NLRB), with whom Paul J. Spielberg, Deputy Asst. Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Washington, D. C., were on brief, for respondent.

Before WRIGHT, ROBB and EDWARDS, Circuit Judges.

Page 713

Opinion for the court filed by Circuit Judge HARRY T. EDWARDS.

Opinion dissenting in part filed by Circuit Judge ROBB.

Dissenting opinion filed by Circuit Judge J. SKELLY WRIGHT.

HARRY T. EDWARDS, Circuit Judge:

At issue in this case is whether an employer violates Section 8(a)(1) of the National Labor Relations Act ("NLRA" or the "Act") 1 by seeking to compel employees, at an investigatory interview, to respond to questions raised by company counsel relating to a union grievance that has been scheduled for arbitration. The National Labor Relations Board ("NLRB" or the "Board") held in this case that Cook Paint & Varnish Company (the "company") violated Section 8(a)(1) of the Act by threatening two employees with suspension or discharge if they refused to respond to such questions, and ordered the company to cease and desist from this allegedly unlawful conduct. In reaching this conclusion, the Board adopted what appears to be a per se rule that an employer may never use a threat of discipline to obtain information from an employee concerning a matter that has been set for arbitration. On petition for review brought by the company, and cross-application for enforcement by the Board, we decline to enforce the order of the Board and remand this case to the Board for further proceedings.


The facts are not in dispute and may be stated briefly. 2 On February 3, 1978, an incident occurred at a company facility that contributed to the eventual discharge of employee Paul Thompson. 3 This discharge led to the filing of a contract grievance by the Paintmakers and Allied Trades Local 754 (the "union"), the certified bargaining representative of the company's employees. When the grievance was not resolved successfully under the established grievance provisions of the collective bargaining agreement between the company and union, the union appealed the case to binding arbitration.

After the matter had been scheduled for arbitration, the company called in William Nulton, its outside labor relations attorney. A. 110. 4 The company presented Nulton with a case file on the dispute, which included information concerning two proceedings related to the Thompson discharge that had been decided adversely to the company. In one proceeding, Thompson had been awarded unemployment compensation from the Missouri Employment Security Division, after a hearing in which the company's contention that Thompson had been fired for cause was rejected. ALJ 3. 5 In the second proceeding, the Occupational Safety and Health Administration (OSHA) had issued a citation and fined the company $450 following an administrative investigation of the February 3 incident. A. 77, ALJ 3.

Believing that, as a result of the outcome of these two related proceedings, the arbitration case perhaps should be settled, Nulton decided to interview persons potentially knowledgeable of the February 3 incident. A. 77-80. In particular, Nulton sought to interview Jesse Whitwell and Doug Rittermeyer, two employees who had been interviewed by the Government investigator prior to the issuance of the OSHA citation. A. 76. Both Whitwell and Rittermeyer

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worked in the same area in which Thompson had been employed at the time of the February 3 incident; Whitwell was also the union steward responsible for that area. 6

On April 21, Whitwell was called to the office of the employer's general superintendent for a meeting with company counsel. Nulton informed Whitwell that he was preparing for the forthcoming arbitration and wanted to find out what Whitwell knew of the incident involving Thompson that had occurred on February 3. ALJ 4. Whitwell was told that he was not the subject of the investigation and would not be disciplined for truthful answers, but that the company had a legal right to question him. Nulton also informed Whitwell that if he refused to answer questions posed by company counsel, he would be subject to discipline. Id. After consulting with Robert Reinhold, counsel for the union, Whitwell decided to answer "under protest." Id. 7

After Whitwell's interview was concluded, Nulton similarly attempted to question employee Rittermeyer. When Rittermeyer expressed reluctance to answer questions about the Thompson matter, he was told by Nulton that he would be suspended or discharged if he refused to do so. ALJ 5. As a result of this threat, Rittermeyer responded to Nulton's questions. Id.

The questioning of Whitwell and Rittermeyer was purely factual in nature, concerning solely the events that occurred at the plant on February 3. A. 94-97, 104-05. 8 Neither employee was asked whether he would testify at the upcoming arbitration, or whether he had been requested to testify. A. 105-06. Nor were the employees questioned concerning statements that had been given to the OSHA investigator. A. 111.

After the interviews were concluded, the union filed an unfair labor practice charge, alleging that the company had violated Section 8(a)(1) of the Act 9 by threatening employees with disciplinary action "because of their engaging in concerted activity." ALJ 1. A complaint was issued by the Regional Director of the Board, and a hearing was conducted before Administrative Law Judge Josephine Klein.

Page 715

At the hearing, Nulton explained his insistence on questioning Whitwell and Rittermeyer. As described by Administrative Law Judge Klein:

Nulton testified that he had not been consulted until after Respondent had lost the unemployment compensation case and had been fined by OSHA. Although there had been hearings in the compensation case, the OSHA investigation had been confidential. It was known that OSHA had spoken to Whitwell and Rittermeyer, but Respondent's representatives had no inkling of what the employees had said. Nulton said he believed he could successfully handle the matters involved in the unemployment compensation case, but he felt he needed to know what Whitwell and Rittermeyer had told OSHA because OSHA rarely issued citations or imposed fines without sound reason.

ALJ 5. Nulton testified that he sought the information in an attempt to determine whether the case should be settled. A. 80. Nulton stated further that there "very definitely" had been occasions when he had convinced employer clients to settle cases after arbitration had been set but before a hearing had been conducted. A. 78.

The Administrative Law Judge found a violation of Section 8(a)(1) as charged. The ALJ concluded that "Respondent improperly coerced employees Rittermeyer and Whitwell when it threatened them with discipline if they refused to cooperate by providing information to Respondent in the course of its preparation for arbitration of employee Thompson's discharge." ALJ 14. In addition, as an alternative holding, the ALJ stated that, "(e)ven if it were to be held that employees generally may not refuse to be interviewed by their employers in preparation for arbitration of a grievance, such rule could not appropriately be applied to Whitwell, who was the shop steward in Thompson's department." Id. The ALJ thus found the interrogation of Whitwell to be an independent violation of the Act.

Upon the filing of exceptions the Board concluded that "(w)e agree with the Administrative Law Judge that Respondent violated Section 8(a)(1) of the Act by threatening employees Jesse Whitwell and Douglas Rittermeyer with suspension and or discharge if they refused to respond to questions posed by Respondent's counsel relating to a grievance proceeding which was scheduled for arbitration." Cook Paint and Varnish Co., 246 N.L.R.B. No. 104 at 1-2 (Nov. 30, 1979) (footnote omitted). The Board opinion states what appears to be a blanket or per se rule that

an employer that seeks to compel its employees to submit to questioning in such circumstances violates Section 8(a)(1).

Id. at 3. 10 Since the Board found that all employees are protected from such questioning, the Board found it "unnecessary to pass on the question of whether a union steward is entitled to different treatment in the type of situation presented here than are employees generally." Id. at 2 n.2. The Board thus did not adopt the alternative holding of the ALJ.



A. Introduction

The Board has established in this case what appears to be a per se rule that an employer is barred by Section 8(a)(1) of the Act from using a threat of discipline to obtain information from an employee concerning a matter that has been set for arbitration pursuant to a contractual grievance-arbitration procedure. The right of an employer to interview employees during the pendency of an arbitration hearing has never been addressed by the courts. Before turning to this novel question, however, it

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may be helpful to note briefly certain established tenets concerning general rights of parties to obtain information under the National Labor Relations Act.

B. The General Duty to Furnish Information In the...

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