E.I. Du Pont De Nemours & Company (Chestnut Run) v. National Labor Relations Board

724 F.2d 1061, 115 L.R.R.M. (BNA) 2153, 1983 U.S. App. LEXIS 14068

• Court: Court of Appeals for the Third Circuit
• Decided: December 29, 1983
• Docket: 82-3363
• Status: Published

Opinions

OPINION OF THE COURT

HAROLD A. ACKERMAN, District Judge:

I.

In NLRB v. J. Weingarten, Inc., 420 U.S. 251, 95 S.Ct. 959, 43 L.Ed.2d 171 (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” ¹ 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.²

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 Fields³ 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 ultima-turn, 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,⁴ 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 back-pay 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.

II.

A.

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 “ ‘[t]he Board’s construction ..., while it may not be required by the Act, is at least permissible under it ....’” NLRB v. Transportation Management Corp.,-U.S. -, 103 S.Ct. 2469, 2475, 76 L.Ed.2d 667 (1983), quoting NLRB v. Weingarten, 420 U.S. at 266-67, 95 S.Ct. at 968. See NLRB v. Erie Resistor Corp., 373 U.S. 221, 236, 83 S.Ct. 1139, 1149, 10 L.Ed.2d 308 (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).

B.

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, 95 S.Ct. 959, 43 L.Ed.2d 171 (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, 95 S.Ct. at 965-66. 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, 95 S.Ct. at 965. 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, 95 S.Ct. at 965-66, citing American Ship Building Co. v. NLRB, 380 U.S. 300, 316, 85 S.Ct. 955, 966, 13 L.Ed.2d 855 (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 production time may be saved. 420 U.S. at 262-63, 95 S.Ct. at 966. Finally, the Court recognized that the representative may be able, through informal discussion and persuasion conducted at the threshold, to serve as the catalyst in the amicable resolution of disputes, and, in the union context, be able to discourage unjustified grievances. 420 U.S. at 262-63, 262 n. 7, 95 S.Ct. at 966 n. 7.

Nowhere in the Weingarten opinion is its holding expressly grounded on the existence of a union. Nor can it be suggested that the Weingarten Court was unaware of the possible application of its holding to a nonunion context, for Justice Powell noted this potential extension of the majority’s analysis in his dissent. 420 U.S. at 270 n. 1, 95 S.Ct. at 969 n. 1. Had the Weingarten majority wished to limit its holding to the union setting, it could have done so explicitly-

We conclude that the logic and reasoning of Weingarten carry equal force in the non-union context.⁵ First, it appears to us that an employee’s request that a coworker be his or her representative in an investigatory interview builds solidarity and vigilance among employees in the absence of a union no differently than it does where a collective bargaining representative has been recognized. Both the initial request by the employee and the willingness by the co-worker to respond by lending his assistance assures the co-worker, “ ‘in case his turn ever comes, of the support of the one [he is] then helping.’ ” Id. at 261, 95 S.Ct. at 965, quoting NLRB v. Peter Cailler Kohler Swiss Chocolates Co., 130 F.2d 503, 505 (2d Cir.1941). Such voluntary action by one worker on behalf of another may stimulate others to follow the example, thereby establishing a matrix of mutual support and assistance.

The extension of Weingarten to the nonunion context also serves in the same manner to help eliminate the inequality of bargaining power between employees and employers. Indeed the perception by workers of an imbalance of power may be heightened in the absence of a union, and the risks of improper or even unintentional intimidation of employees by management may be accentuated. Similarly, the co-worker’s presence may facilitate a more expeditious, efficient and equitable disposition of disputes, and perhaps even serve to help settle them informally. It is thus apparent that each of the Court’s justifications for the result reached in Weingarten is also present in the non-union context as well.

C.

The only other Court of Appeals that has had to consider this issue denied enforcement of the Board’s order. E.I. du Pont de Nemours & Co. v. NLRB, 707 F.2d 1076 (9th Cir.1983). In that case, the employee, Henry Burke, had been “docked” a portion of his paycheck for an unauthorized visit to a doctor. Burke refused to sign his time card for that pay period and was suspended. Id. at 1077. On the following day, he was called into work by his supervisor. Following his arrival, his supervisor read him an “interview record” of performance deficiencies and asked him to sign an acknowledgment that he had been read its contents. Burke refused to do so. Id. Burke’s “second level” supervisor was then called in. He produced a “Development Program” for Burke which listed conditions for his continued employment at Du Pont. Id. Burke asked for copies of both the interview record and the Development Program. When these requests were denied, Burke said he would not sign either document unless a co-worker was present as a witness. This request was also denied, and Burke was terminated. Id.

Based on these facts, the Ninth Circuit held that the General Counsel had failed to establish that Burke’s request for a witness constituted “concerted activity” within the meaning of the Act. Id. at 1080. The court discerned “no evidence of any past activity involving Burke and other employees, and ... no indication that any other employee would respond to Burke’s request.” Id. at 1079. Further, Burke “was at all times willing to waive his request for a witness if Du Pont would give him these documents.” Id. The court distinguished Weingarten by suggesting that concertedness had there been assumed “from the request for a union representative.” Id. at 1078 (emphasis added). While acknowledging that Weingar-ten’s holding is not necessarily limited to unionized employees, the Ninth Circuit panel stated that in the non-union context the Board must make an explicit showing that “the requesting employee acts as part of a group.” Id. at 1079.

We believe the Ninth Circuit’s interpretation of Weingarten to be foreclosed by the Supreme Court’s expansive interpretation of Section 7 in the Weingarten opinion itself. In particular, the Court’s citation, apparently with approval, of Mobil Oil Corp. v. NLRB, 482 F.2d 842, 847 (7th Cir.1973), cited at 420 U.S. at 260, 95 S.Ct. at 965, suggests that the proper focus in evaluating the requirement of concertedness in this context should be on the literal nature of the activity that would take place if the employee’s request was granted. Until Congress or the Supreme Court commands a narrower view of the Act, we must defer to the Board’s construction.⁶

III.

Substantial evidence supports the Board’s determination that Du Pont violated the Section 7 rights of Slaughter. First, the record amply demonstrates that Slaughter reasonably believed the interview might result in discipline — a prerequisite to finding Section 7 activity in this case. The evidence relied on by the Board is uncontra-dicted: Slaughter had previously been placed on probation by Farley for an unexcused absence; he had been told by Farley to “follow the rules to the hilt;” he had also been told by Farley that the unauthorized posting of the notice in the canteen was a violation of company policy; and he believed Farley intended to question him about this unauthorized posting. In these circumstances, and applying an “objective standard,” see Weingarten, 420 U.S. at 257 n. 5, 95 S.Ct. at 964 n. 5, we conclude that substantial evidence supports the Board’s finding of a reasonable belief.

Second, the Board’s finding that Slaughter would not have been discharged absent his protected activity is also supported by substantial evidence. Specifically, the Board first considered Du Pont’s claim that Slaughter would have been legitimately discharged in any event because of his unauthorized posting of a notice while on probation. As the Board correctly noted, Du Pont conceded this point before the ALJ, stating that Farley did not intend to discipline Slaughter for the posting infraction. 262 N.L.R.B. at 1029; see Transcript of Hearing before ALJ, July 7, 1980, App. at 97A. The Board also rejected Du Pont’s suggestion that Slaughter would have been validly discharged for insubordination, apart from and independent of his protected activity:

The evidence shows ... that Slaughter repeatedly stated his willingness to go to an interview if Respondent would grant his request for a witness. Furthermore, the facts show that Slaughter at no time was disorderly or presented any threat of violence in the work area; was not disrespectful to any superior; and complied immediately when told to report to the front desk, the front office, and Ritter’s office. The record is also clear that Slaughter proposed and brought to Farley two alternative witnesses, both unsatisfactory to Farley.

* * * * * *

It is evident that any “insubordination” on the part of Slaughter was restricted to his insisting on having an employee of his choice present at any discussion concerning the posting incident. In so insisting, he was asserting his Weingarten right, and he could not be disciplined under the guise of “insubordination,” as he was here, for exercising that right.

262 N.L.R.B. at 1029.

These findings by the Board are amply supported by evidence on the record as a whole.

We cannot agree with our dissenting colleague that this matter needs to be remanded to the Board “for findings based on a uniform test of causation,” Dissenting Op. at 1076, that is, the test for mixed-motive discharge cases announced by the Board in Wright Line, 251 N.L.R.B. 1083 (1980), enforced on other grounds, 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982), and approved by the Supreme Court in NLRB v. Transportation Management Corp., - U.S. -, 103 S.Ct. 2469, 77 L.Ed.2d 667 (1983).⁷ Although we share Judge Garth’s concern that important legal issues not be resolved on the basis of an inadequate factual record, we are persuaded that in the present proceeding, the recent developments in the law of mixed-motive discharges did not affect the decisions of either the ALJ or the Board.

As this case was analyzed by the ALJ, the Wright Line test was irrelevant, and therefore it did not matter that his decision preceded Wright Line. The ALJ stated in the opening sentence of his “Discussion” that “Respondent’s sole reason for its discharge of Slaughter was his insubordination in refusing to submit to an interview without an employee witness.” 262 N.L.R.B. at 1030 (emphasis added). The ALJ further noted that Du Pont had even “concedefd] that Slaughter was discharged for insubordinately refusing to submit to the meeting without a ‘witness’ ...” Id. at 1031. This finding was reiterated by the ALJ in his “Conclusions of Law,” in which he stated that Du Pont had discharged Slaughter “because he refused to be interviewed without the attendance of an employee witness.” Id. at 1032. Given his determination that Slaughter’s discharge was motivated solely by Du Pont’s improper animus, the ALJ had no reason to apply any rule for evaluating evidence in mixed-motive discharge cases. In the absence of a second motive, application of the Wright Line rule would be a waste of judicial resources.

Moreover, any analytic deficiency in the ALJ’s decision was cured on appeal to the Board. Rather than simply adopt the findings of the ALJ, the Board performed an independent analysis of the record and explicitly applied the Wright Line rule. 262 N.L.R.B. at 1029. Correctly explaining that Wright Line requires an employer to “demonstrate that the same action would have taken place even in the absence of the protected activity,” id., the Board found that Du Pont failed to meet its burden of persuasion. Given that the Board, and not the ALJ, is ultimately responsible for fact-finding,⁸ and given our determination that the Board’s finding is amply supported by the record, see supra at 1068,⁹ we are convinced that remanding this matter for additional proceedings under Wright Line would serve no useful purpose.¹⁰

IV.

Accordingly, we will deny the petition for review and grant the Board’s cross-petition for enforcement of its order.

1 . The “Notice,” a printed poster that explains the basic rights of employees under the Act, was sent to Slaughter by the Regional Office of the Board in response to his request for information on union organizing.

2 . Farley had placed Slaughter on probation the previous month. At that time he had been warned that he would have to “follow [the] rules to the hilt” in the future, and that his work would be reviewed monthly.

3 .Fields was known by both Slaughter and Farley to be a local official of the NAACP.

4 . The Board “affirm[ed] the rulings, findings, and conclusions of the Administrative Law Judge, as modified” by the Board’s own opinion in this case. 262 N.L.R.B. at 1028. The Board’s modifications of the ALJ’s statement of facts were limited to minor amendments to the chronology of events and a re-examination of the record in light of the Board’s intervening decision in Wright Line, A Division of Wright Line, Inc., 251 N.L.R.B. 1083 (1980). Throughout this opinion we refer to the Board’s opinion unless otherwise indicated.

5 . Judge Adams notes that he has reservations about the wisdom of applying Weingarten principles to a non-union setting in the same way they have been applied in a union setting. In particular, Judge Adams believes that the Board’s decision in this case may generate unforeseen difficulties because a non-unionized coworker representative lacks the objectivity and expertise of a union steward and because such non-union representatives do not operate under the constraints imposed by an established labor organization. See Materials Research Corp., 262 NLRB 1010 (1982) at 1019 (Van De Water, Chmn., dissenting in relevant part) and 1021-22 (Hunter, Member, dissenting in relevant part). Nevertheless, in light of the Supreme Court’s opinion in Weingarten, Judge Adams is unprepared to hold, despite his concerns, that the Board’s decision here is inconsistent with the Act.

6 . Additionally, we note that the facts underlying the Ninth Circuit’s opinion are readily distinguishable from those of the situation before us. Indeed, Weingarten may not have been applicable there even if the employees had been unionized, given that Burke’s encounters with his supervisors could hardly be characterized as investigatory interviews.

7 . The Wright Line decision clarified the Board’s approach to discharges motivated by both legitimate and illegitimate reasons. Wright Line articulated a substantive standard and a burden-of-proof rule for deciding these “mixed-motive” discharge cases. Borrowing from the Supreme Court’s analysis in Mt. Healthy City School Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 97 S.ct. 568, 50 L.Ed.2d 471 (1974), the Board decided that a mixed motive discharge is not violative of the Act when an employee would have been discharged even if he had not engaged in any protected activity. The Board held that once the General Counsel has established by a preponderance of the evidence that a discharge is in any way motivated by animus against a protected right, the burden of persuasion shifts to the employer to show by a preponderance of the evidence that the employee would have been discharged on the basis of valid reasons alone.

Before the Supreme Court’s decision in Transportation Management, the Third Circuit refused to accept the NLRB’s Wright Line rule. See Behring International, Inc. v. NLRB, 675 F.2d 83 (3d Cir.1982), vacated and remanded, -U.S.-, 103 S.Ct. 3104, 77 L.Ed.2d 1359 (1983). Under the old Third Circuit approach, the burden-of-persuasion never shifted to the employer. Rather, the NLRB General Counsel was required to demonstrate not only that an employer was in part motivated by improper animus, but also that in the absence of the protected activity, the employer would not have discharged the employee.

8 . See 29 U.S.C. §§ 160(e) and (f) (1976) (“the findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be con-elusive”); 29 U.S.C. § 160(c) (1976) (“the Board shall state its findings of fact”); see also Stein Seal Co. v. NLRB, 605 F.2d 703, 706 (3d Cir.1979) (“the ALJ’s findings and recommendations, when contested, become merely advisory and the Board itself makes an original disposition of the case”); NLRB v. Duquesne Electric and Mfg. Co., 518 F.2d 701, 704 (3d Cir.1975); C-B Buick, Inc. v. NLRB, 506 F.2d 1086, 1091 (3d Cir.1974).

9 . Although the dissent professes to follow the rule that in NLRB proceedings, a court of appeals may not examine the record independently to determine the facts, it does just that. Most disturbing, however, are the dissent’s repeated statements to the effect that the ALJ “totally” discredited Slaughter’s testimony or “refus[ed] to credit” that testimony. This characterization is simply not supported by the ALJ’s opinion. To be sure, the ALJ “principally derived” his fact statement from Farley, whom he labelled “more reliable” because of Slaughter’s tendency to be “expansive” and “to answer his own questions and present arguments.” 262 N.L.R.B. at 1030 n. 1. This observation, however, by no means constitutes a wholesale rejection of Slaughter’s credibility. Indeed, in his only direct resolution of a credibility conflict, the ALJ chose Slaughter’s version of the facts over Farley’s. Id. at n. 2.

10 . Despite the fact that the Board decided this case while our Court was resisting application of Wright Line, the Board nevertheless chose to invoke the Wright Line rule. Thus we cannot accept the dissent’s contention that the Board might make different findings on remand, now that the old Third Circuit rule has been rejected by the Supreme Court.

Of course, insofar as the Board conformed its analysis to the old rule of the Third Circuit and kept the burden of proof on the General Counsel, this reliance on the prior approach would make no difference to the outcome of this case. If the General Counsel could establish a violation under the more stringent burden-of-proof rule which this Court adhered to before Transportation Management, then surely the General Counsel would prevail when aided by the shift in burden that Transportation Management has now approved.