Pacific Tel. & Tel. Co. v. N.L.R.B.
| Citation | 711 F.2d 134 |
| Decision Date | 19 July 1983 |
| Docket Number | Nos. 82-7466,82-7467,82-7556 and 82-7557,s. 82-7466 |
| Parties | 113 L.R.R.M. (BNA) 3529, 98 Lab.Cas. P 10,296 The PACIFIC TELEPHONE AND TELEGRAPH COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. (Two cases) NATIONAL LABOR RELATIONS BOARD, Cross-Petitioner, v. The PACIFIC TELEPHONE AND TELEGRAPH COMPANY, Cross-Respondent. (Two cases) |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Christine Weiner, Washington, D.C., for respondent.
Michael A. Rodriguez, San Francisco, Cal., for petitioner.
On Petition for Review and Cross-Application for Enforcement of Decisions and Orders of the National Labor Relations Board.
Before BROWNING, Chief Judge, MERRILL and ALARCON, Circuit Judges.
In consolidated cases Pacific Telephone and Telegraph Company petitions for review of orders issued by the National Labor Relations Board holding the company guilty of unfair labor practices in violation of § 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1). The Board ruled that Pacific Telephone had deprived employees of rights guaranteed by § 7 of the Act, 29 U.S.C. § 157 1, in holding investigatory interviews regarding improper employee conduct without first informing the employees of the subject matter of the interviews and allowing them time for a pre-interview conference with a union representative. The Board cross-applies for enforcement of its orders.
One of the consolidated cases (262 N.L.R.B. No. 127, 1982-83 NLRB Dec. (CCH) p 15,004 (1982)) involves conduct in 1978 by employees Ebojo and Flores, two installer-repairmen. By independent investigation Pacific Telephone had secured evidence that on company time Flores had installed unauthorized telephone equipment in Ebojo's home. Company supervisors summoned Ebojo and Flores to interviews and also summoned union steward Robert Green to act as the employees' representative. Ebojo, Flores and Green all inquired as to the purpose of the interview but received no information. Flores was interviewed first and after being told of the evidence in the possession of the company, admitted having installed unauthorized equipment in Ebojo's home. Discrepancies in Flores's timesheets were also discussed. When Ebojo was summoned for an interview, Green requested an opportunity to confer with him prior to the interview but this request was refused. 2 Ebojo denied possession of the sort of equipment the company believed he had but did admit possession of other unauthorized equipment. Both Ebojo and Flores were subsequently discharged. The company discharged Flores for timesheet falsification and for the unauthorized installation of equipment in Ebojo's home. The company discharged Ebojo for timesheet falsification and for having unauthorized equipment installed in his home.
In the other case (262 N.L.R.B. No. 125, 1982-83 NLRB Dec. p 15,003 (1982)), Pacific Telephone, by independent investigation, obtained information in 1980 that two of its long-distance operators, Revada and Martinez, had used company equipment to place lengthy long-distance calls from their homes while taking steps to avoid billing. In this case, the company investigating officer did advise the employees and their union representative of the subject matter of the interview, but refused a request of the representative to a pre-interview conference with the employees. The employees refused to give any information and were subsequently discharged for misuse of company time and equipment.
Ebojo and Flores filed charges with the Board, as did the union on behalf of Revada and Martinez. In both cases the Board found that the employer had violated § 8(a)(1) by refusing to grant pre-interview conferences to Ebojo, Revada and Martinez and to inform Flores and Ebojo as to the subject matter of the investigation. It entered cease and desist orders and also ordered Flores and Ebojo reinstated with back pay.
In NLRB v. J. Weingarten, Inc., 420 U.S. 251, 95 S.Ct. 959, 43 L.Ed.2d 171 (1975), the Supreme Court, accepting the position taken by the Board, held that § 7 of the National Labor Relations Act created a statutory right of an employee to union representation at any investigatory interview conducted by the employer which the employee reasonably fears may result in his discipline.
The questions presented on this petition are: (1) whether the Board permissibly construed the Weingarten right to include the right to be informed prior to the interview of the subject matter of the interview and the nature of any charge of impropriety it may encompass and the right to a pre-interview conference with a union representative; (2) whether the request for a conference may come from the union representative or must come from the employee himself; and (3) whether the grant to Flores and Ebojo of reinstatement and back pay was within the Board's statutory authority. The first two questions require an examination of the Board's construction of § 7 and its view of the nature of the employee's right to act in concert as approved and accepted by the court in Weingarten. This Court will uphold the Board's construction of the National Labor Relations Act if it is reasonable or permissible. Ford Motor Co. v. NLRB, 441 U.S. 488, 497, 99 S.Ct. 1842, 1848, 60 L.Ed.2d 420 (1979); Weingarten, 420 U.S. at 266-67, 95 S.Ct. at 968.
Answer to the first question depends upon the nature of the employee's right to act in concert. In Weingarten, the Court quoted with approval from the Board's decision in Mobil Oil Corp., 196 N.L.R.B. 1052 (1972), enf't. denied, 482 F.2d 842 (7th Cir.1973). Weingarten, 420 U.S. at 257, 95 S.Ct. at 963. The Board in Mobil Oil Corp. held it to be a violation of § 8(a)(1) to compel the employee to "appear unassisted at an interview which may put his job security in jeopardy". The Board regarded this as "a dilution of the employee's right [under § 7 of the Act] to act collectively to protect his job interests" and an "unwarranted interference with his right to insist on concerted protection rather than individual self-protection against possible adverse employer action." 3 196 N.L.R.B. at 1052.
The Weingarten Court held that "[t]he Board's holding is a permissible construction of 'concerted activities for ... mutual aid or protection' by the agency charged by Congress with enforcement of the Act, and should have been sustained." 420 U.S. at 260, 95 S.Ct. at 965.
If the right to insist on concerted protection against possible adverse employer action encompasses union representation at interviews such as those here involved, then in our view the securing of information as to the subject matter of the interview and a pre-interview conference with a union representative are no less within the scope of that right. The Board's order that failure to provide such information and grant such pre-interview conferences constituted unfair labor practices is as permissible a construction of § 7 as was the construction upheld in Weingarten. Without such information and such conference, the ability of the union representative effectively to give the aid and protection sought by the employee would be seriously diminished. 4
The second question presented by the petition is whether the request for a conference must come from the employee himself. Here, in the case of Ebojo, Revada and Martinez, the request came from the union representative. As we note in footnote 3, the Supreme Court has stated that the right to union representation at an investigatory interview as defined by the Board is a right which must be requested by the employee and which the employee may choose to forego. See Weingarten, 420 U.S. at 257, 95 S.Ct. at 963. We read this to mean that the...
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