Warren E. Burger: We'll hear arguments next in number 73-1363, National Labor Relations Board against Weingarten. Mr. Hardin, you may proceed whenever you're ready.
Patrick Hardin: Mr. Chief Justice and may it please the Court. This case like the one just argued presents the Court with the issue whether it is an unfair labor practice for an employer to refuse an employee's request for the presence of her union representative at an investigatory interview which the employee reasonably believes will lead to disciplinary action. And I'd like to begin by pointing out to that there are no cross-petitions in this case, and that to the propriety of the fifth -- of the labor and the Fifth Circuit determination that the right to union representation, as a part of the right to bargain collectively arises at the point where discipline is to be imposed is an issue not directly presented in this case. We are here concerned with a different part of the statutory rights conferred by Section 7. Specifically, they are the rights to act in concert from mutual aid or protection. The Board is held that that grant of statutory right, which is to be distinguished from the right to act in concert for the purpose of collective bargaining, does grant to the employee the right to be represented at an investigatory interview. I'm going to state the facts --
Potter Stewart: It has to be -- you have to say this, this involves engaging in concerted activities.
Patrick Hardin: Yes, that must be --
Potter Stewart: Not just act in concert, but --
Patrick Hardin: Concerted activities --
Potter Stewart: The statute says to engage in other concerted activities. Now, that's a little different arguably. In other words, if you're going to rely on the statutory language, I think it's quite important that we keep our eye on what the statutory --
Patrick Hardin: You're quite right. It must be concerted activity, and the Labor Board of course has found that one employee stretches a hand to the other to seek that mutual aid, they are engaged in concerted activity or are seeking to do so a right which the Board can protect. I think that a statement of the facts will help to illustrate for the Court very clearly the value to the employee of the right which the Board has recognized in this case as it did in Quality. J. Weingarten Company operates a chain of about 100 retail stores in the Houston, Texas area. Like most large retail and distribution enterprises, it maintains a centralized security apparatus, one of the purposes of which is to investigate suspected employee theft. Leura Collins is an employee of J. Weingarten and has been employed since 1961 in a number of stores working at lunch counters or in the lobby departments, a more sophisticated prepared food takeout arrangement. In June of 1972, Mrs. Collins was working at store number 98, and in June of 1972, information came to the company's attention which suggested that Mrs. Collins was engaged in dishonest activities. The record does not disclose either the source of the nature of that information. The company reacted to it by dispatching one of its Loss Prevention Specialists, Mr. Hardy to conduct an investigation. And on June 15, 1972, Mr. Hardy began two days of plain close surveillance of the operation of the lobby department at Store No. 98. He saw nothing which indicated any evidence of wrongdoing by the employees. And on the third morning, which would have been the 18th, he introduced himself to the store manager at Store No. 98, Mr. York. The two have not previously known one another, and the Loss Prevention Specialists identified himself as a member of the central security bureau of the employer's operation. He reported that he had conducted an investigation into the lobby department, and had found no evidence of any employee dishonesty. The manager responded by saying “why just this very morning, another employee in the lobby department reported to me that yesterday, Mrs. Collins took a $3.00 box of fried chicken from the lobby department, and put only a dollar in the till.” Well, the Loss Prevention Specialists decided to check that out. He summoned the employee who had so reported to the manager, Mrs. Moody, and he interrogated her about the allegation of -- that Mrs. Collins had stolen $2.00 worth of chicken the day before. Mrs. Moody confirmed the story, and then, Mrs. Collins was summoned to an area near the manager's office. There, she was confronted with the Loss Prevention Specialists from headquarters, who began to interrogate her about the general acts of dishonesty. Mrs. Collins asked if she could have the assistance or the presence of her union representative. The store manager said “No. This is a private matter between you and the company.” With respect to the questioning about the box of chicken on the preceding day, Mrs. Collins stated “We had been out of small boxes, so I took a small $1.00 quantity of chicken, put it in a larger box, paid the dollar for it and left the store.” The Loss Prevention Specialists went to check this out and he determined that in fact, the store had been out of smaller boxes on the preceding day, and that the employee who had reported on Mrs. Collins didn't know how much chicken she'd put in the large box. He went back to the interview and said “The interview is terminated. Your story checks out.” At that point, Mrs. Collins became very emotional and began to cry, probably tears of relief. But in any rate in her relief, she says “I've worked for Weingarten's for 11 years and I've never taken anything that I've paid for, except the free lunches.” The Loss Prevention Specialists and the manager professed to be astonished that anyone was getting free lunches at Weingarten's, and they immediately resumed the interrogation. [Crowd laughing]
William O. Douglas: But what's this title, Loss Prevention Specialists, that's certainly a high sounding, (Inaudible)?
Patrick Hardin: That's the company's terminology, Your Honor. The -- Mrs. Collins again asked for the assistance of her union representative. She insisted that she had taken lunches because it was the practice of all the employees, including the lobby department manager to do so, and she indicated that she would not sign a statement which the Loss Prevention Specialists was then typing by which she was to acknowledge a debt to the company of $160.00 for lunches which she shouldn't have eaten. The Loss Prevention Specialists then made some further inquiries and discovered that no one at company headquarters could say for sure that there was or was not a policy permitting free lunches at Store 98.
Potter Stewart: At the previous store, there clearly had been --
Patrick Hardin: They clearly had been at the lunch counter at the previous store where she --
Potter Stewart: -- Store No. 2 or whatever.
Patrick Hardin: That's right, Store No. 2. When she had transferred the Store No. 98, the company apparently thought that she and all employees had been instructed that there would be no free lunch, but there is no evidence in the record --
Potter Stewart: In the lobby type store.
Patrick Hardin: That's right. The record does not disclose affirmatively that such instructions every were given, and it does show that all of the employees in the lobby department, including an employee titled lobby department manager were taking free lunch everyday that he worked. The interview was terminated. Later in the afternoon, the manager discovered that in fact all the employees in the lobby were getting free lunches, and he the next day, issued an order directing that it'd be stop. Meanwhile, he sent Mrs. Collins home, gave her the afternoon off because she was so distraught, and asked that she not discussed the interview with anyone. She discussed it with the union representative and that lead to the filing of charge with the National Labor Relations Board. The general counsel issued a complaint against the company alleging specifically that the company had denied Mrs. Collins' request for the assistance of a union representative during these interviews, and that the denial was a violation of Section 8 (a) (1).
William H. Rehnquist: Nothing more ever happened to Mrs. Collins?
Patrick Hardin: That is correct.
William O. Douglas: She came back to work?
Patrick Hardin: She returned to work. She was paid ultimately for the four hours she taken off the preceding afternoon, and so far as the record discloses, I think that she is still working.
Potter Stewart: And so, what was the Board's order, there was no reinstatement, and that's the order necessarily.
Patrick Hardin: No, of course not, nor was there in the Mobil Oil case which had been discussed this morning. It's a direction to the company to cease and desist from interrogating employees unless there are accorded the right to have the assistance of the union representative.
Potter Stewart: Is there any -- these, the facts because of what you just told us, well less little more mild in this case than in the previous one. But is the issue, the identical issue, is there any difference at all?
Patrick Hardin: It is identical in this case to the situation that the woman in Quality have been into was asking for the assistance of her union representatives, Quality --
Potter Stewart: So we have there, the representatives --
Patrick Hardin: -- representatives themselves being disciplined for their efforts to provide --
Potter Stewart: But, it's basically the same issue.
Patrick Hardin: It is basically the same issue. It is precisely the same.
Potter Stewart: Yes, precisely the same, that is correct.
Patrick Hardin: The Board adopted the decision of its administrative law judge, which applied the then recent Quality Manufacturing decision and found that there had been concerted activity for the purpose of mutual aid and protection, and then addressed the question whether Mrs. Collins' fears that the interview might lead to discipline were reasonably based in all the circumstances. The decision takes particular note of the fact that these events occurred in the retail industry, and that Weingarten in common most members of that industry, most important is in that industry, regard employee dishonesty were proved to the employer's satisfaction to be an unpardonable offense the discipline for which ordinarily is discharged, unless there are exceptional litigating circumstances. With that in mind and because the contract here provided that the usual system of warning notices was not available to an employee who was deemed guilty of theft to the employer's satisfaction, the law judge concluded that Mrs. Collins' manifest fears had indeed been reasonably grounded and objective circumstances, and that she was entitled either to have the assistance of her union representative at that interview, or to have the company terminate the interview and forgo the benefit of what information it might get from interrogating her. The Fifth Circuit refused to enforce the order of the Board. It noted first in apparent conflict or inconsistency between the result in this case and the result which that court had disapproved in the earlier Texaco decision noted the apparent inconsistency between the result here and its own earlier Texaco decision. But then, coming directly to grips with the Board's rational in this case, that is the proposition that the language of Section 7 itself confers the right, the court rejected that rational apparently and the opinion is not entirely clear, but apparently, not because it regarded its own earlier decisions as controlling, but because it disagreed with the Board about the need to extend that kind of protection to employees. The court says and this is from page 7 (a) of our petition for certiorari in this case, the court says while a basic purpose of Section 7 is to allow employees to engage in concerted activities for their mutual aid and protection, such a need does not arise at an investigatory interview to extend to the scope of the act's protection to such preliminary contacts between an employee and his employer would be to apply an overbroad interpretation of Section 7, without explanation as to why or direct explanation as to why it regarded the protections as unneeded and the construction of the statute which the Board had settled on as being overbroad. Now, the decision of the Fifth Circuit is defended in this Court, basically upon two grounds. The first, there is the argument that the right conferred cannot be logically found within the confines of the statute itself. And secondly, its argued that the Board's decision is basically unwise or that the cost of securing these employee rights will be so far outweighed by the -- the advantages of securing these employee rights will be so far outweighed by the costs to the employers but it's unwise to grant them in the first instance of varying on that last argument is that the Board hasn't really clearly told us it made that balance, and so you can affirm it even if it's the right balance.
Warren E. Burger: Do you think that that such an interview is this, the preliminary interview where you do not conceive the right have a friend there that the employee could make statements that would be incriminating, and now distinguishing, your case is not part of the state, it's not a governmental --
Patrick Hardin: Incriminating literally, you mean?
Warren E. Burger: Yes.
Patrick Hardin: It certainly is possible that an employ --
Warren E. Burger: In the Fifth Amendment sense.
Patrick Hardin: Yes, it is not only possible, it is fairly common for an employee caught in the toils of the employer's security apparatus, not only to make incriminating statements, but to see them written out and then design them. But the --
William H. Rehnquist: There's nothing undesirable about that, though as if the statements are truthful?
Patrick Hardin: Certainly not, certainly not. The interest of the employee and the interest of the employer are basically in harmony in such a circumstance. Each has an interest in seeing that the truth, whatever it is, is disclosed, and in preventing overreaching by the interrogator which leads to confessions by employees to events which they may or may not be guilty of, but -- which they are not guilty in fact, I mean to say.
Warren E. Burger: Now, I take it you distinguished the situation to which you just responded from the typical official incrimination. On that ground, I suggested that you are not part of any governmental apparatus; this is a private contractual arrangement between an employer and an employee. And that in the traditional sense, the Fifth Amendment protections do not reach that, is that --
Patrick Hardin: There's no contention whatever in this case that the employer's actions are colored by any state actions, notions, whatever, and the Board in its discussion of these issues has never casts its discussion in constitutional terms or analyzed the issues by reference to the decisions of this Court in the area of Fifth Amendment protections. The right which the Board is seeking to protect to your springs from the statute and has been accommodated as best of the Board can accommodate that right to the realities -- industrial relied.
William O. Douglas: I gather as to concerted activities or what the Board appeals to is the very special deference to Board judgment as to what does constituted concerted activity. Is that it?
Patrick Hardin: That is correct, Your Honor.
William O. Douglas: And that -- well, in terms of judicial review of Board determination of what constitute the concerted activity, what's the test?
Patrick Hardin: The --
William O. Douglas: Because I gather what the Fifth Circuit has done here say not too clearly, that doesn't accept.
Patrick Hardin: Well --
William O. Douglas: As within a Board competence -- this definition --
Patrick Hardin: I think, we have to separate two things in this discussion Your Honor.F irst of all, the question of how much deference the Board's view about the meaning of the law is entitled too. It is entitled to great weight, but it is certainly not that of standard of review as not so rigorous as -- or so confine as it would be in the case of an examination for abuse of discretion or something of that sort. But the second point which has to be remembered here is that a part of the process of judging in these cases has been the process of adopting the perceived statutory right, so that it can function in a useful way in the real world. And it's that part of the Board's decision making function which is entitled to very, very great deference in reviewing courts. And here, the Board clearly has in its course of decision, taken a primary statutory right, a right that I have stated before is described in the disjunctive from the right to bargain collectively. And it has tailored that right in an effort to permit employees to have that mutual aid or protection at a point where clearly is needed as Mrs. Collins situation attests. But it has been limited. We're not here arguing as Mr. Jenkins in the last case appeared to think but there is an absolute right to union representation at all times under all circumstances. The right in the Board's view is available first --
Byron R. White: Mr. Hardin, that Board isn't taking that position but if this all turns around the word “concerted”, and it's concerted because one employee is holding on his hand to the other, I don't know were your limits are when he doesn't fear discipline is pure investigation or is just a conversation. And he holds out his hand to the other they want somebody along with them.
Patrick Hardin: Well, that -- the accommodation of admittedly conflicting interests in that area is one --
Byron R. White: Do you say that that --
Patrick Hardin: -- committed to the Board --
Byron R. White: -- won't happen as long as the Board sets it.
Patrick Hardin: [Laughter Attempt] I wasn't going to say that. I was going to say, that the entire matrix of law that exist under the act today is the consequence of a serious of adjustments between conflicting rights of employees on the one hand and needs of employers on the other hand.
William J. Brennan, Jr.: And you say as to that in the real world which sets the Board's responsibility they have in mind would it makes this kind of determination. This is well within Board's competence to commit.
Patrick Hardin: -- and well within its province to decide.
William H. Rehnquist: Mr. Hardin, this morning, I think you were here when we had this case in the Court of Appeals for the District of Columbia Circuit argued about Truck Drivers case, and there of course the Court of Appeals upset a determination by the Board and the Board is here, Mr. Kronenberg, you seen him have it reinstated. And you're here basically in the same capacity from the different decision this afternoon. Do you see any difference in the standard of review of the Board's exercise of discretion in the case this morning that should be applied by this Court on the case you're arguing?
Patrick Hardin: In any difference in the standard of review?
William H. Rehnquist: Yes, that the Court should apply to a determination by the Board.
Patrick Hardin: I think the only useful distinction is that in this morning's case, the Board was writing against a background of considerable judicial ruling by this Court in the number of others. In this afternoon's cases, we're dealing perhaps not with the tabula rasa, but with province where the Board is still making the first pronouncements, and I think that is a factor which can legitimately affect scope of --
William H. Rehnquist: If you were these judicial decisions in this area than they were in the area this more in this Court.
Lewis F. Powell, Jr.: Mr. Hardin, did you find anything in the legislative history of Section 7 that supports your view of it today as embracing within the prayer's concerted activities the type of meetings and conferences we're talking about?
Patrick Hardin: No, Your Honor. Neither we, nor any other party has been able to take any comfort from the legislative history in this matter. As you know --
Lewis F. Powell, Jr.: Flat silence?
Patrick Hardin: Virtually so. As you know, the statutory language came into the National Labor Relations Act via the Railway Labor Act and the National Industrial Recovery Act, and its precise language received relatively little attention from the drafters.
Potter Stewart: The precise language having to do with representation appears in another part of the Act, didn't it?
Patrick Hardin: The precise language having to do --
Potter Stewart: That is the right to have union representation or union representative at the time of a grievance. That appears somewhere else in the Act didn't it?
Patrick Hardin: It's in the proviso to 9 (a).
Potter Stewart: Proviso to 9 (a)?
Patrick Hardin: That's correct.
Potter Stewart: And in view of that very precise language at the time that the Congress was focusing on this problem, don't you suppose that that could be argued as the metes and bounds of what Congress intended to give by way of representation?
Patrick Hardin: Well --
Potter Stewart: The language of history certainly shows, I would -- either as I remember it and I don't remember it specifically with respect to this problem that 6 and 7 had to do is the right to get together in a group and to organize, first to collectively bargaining and secondly, for various other purposes, but not involving, not that all involving, and that suggesting that this involved individual representation at the time of an interview between an employee and his employer. And since so for as that's covered or dealt with or focused upon by the Congress, you'll find that in the proviso to 9 (b), won't you?
Patrick Hardin: Well, of course, the proviso to 9 (a) --
Potter Stewart: 9 (a), excuse me.
Patrick Hardin: -- was substantially modified during the 1947 amendments. The original version of that if I'm correct, provided that the individual employee was free to present a grievance to his employer. The modifications in 1947 added to that the right to have adjusted, so that the substantial part of the right to deal individually with respect to grievances as was added during the 1947 modifications to the Act. And at that time, I think it is very pertinent to note, this issue had received only the least adumbration, only one decision from the Board had dealt in this area so far as our research discloses, and that was the case where the Board expressly pretermitted dealing with the question whether an employee has an individual right to representation, and of course was the Ross Gear & Tool decision. Well, the Seventh Circuit somewhat put the development of the law of the track by viewing the cases raising the issue which the Board had pretermitted, but then instead of remanding the case so that the Board could answer that question, the Seventh Circuit decided it and probably wrongly. At the same time that was happening, the amendments to the Act of 1947 were putting the prosecution function in the hands of the independent general counsel. And so far as we can tell from the reported general counsel's decisions, for the next 20 years or so, apparently in deference to this view of the law stated by the Seventh Circuit in Ross Gear, the general counsel refused the issue in complaints in cases of this sort. So that we only return to this arena with the issuance of the Board's decision in Quality Manufacturing -- in Texaco, and that point, the Fifth Circuit because persuaded by the Board's view that at least at the point were discipline is to be imposed by the employer, the employee has the right under the collective bargaining part of Section 7 to have the union representative present, and the union representative has the right to be there. It disagreed with the Board however, that the facts in that case presented in occasion where discipline was to be imposed, and treated it as instead as being merely an occasion where the employer intended to interrogate the employee.
Potter Stewart: Mr. Hardin, you're not contending or are you that this comes out of the collective bargaining part of Section 7?
Patrick Hardin: No, we are not. We are not.
Potter Stewart: Because there was a goody of such talk in the briefs, I remember as I read on it. Maybe --
Patrick Hardin: Not in our brief.
Potter Stewart: Well, we could -- so this is not collective bargaining?
Patrick Hardin: No, this is not collective bargaining. You can't have collective bargaining until there was something to bargain about, and the Board's view affirmed that to some extent at least by the Fifth Circuit is that something to bargain about arises at the earliest where the employer calls the employee and to impose discipline. This right --
Potter Stewart: Even a grievance – even a complain that that of kind of grievance is not generally known as collective bargaining isn't it, it's something else.
Patrick Hardin: I --
Potter Stewart: In any event, we don't need to --
Patrick Hardin: We don't have to reach that, but the statutory language requires bargaining about the meaning of an agreement during its term, as well as about the terms which are to be settled on the --
Potter Stewart: So-called minor dispute. But this is not collective bargaining, you're not contending --
Patrick Hardin: We are not contending that the rights here arise out of collective bargaining.
Potter Stewart: So, through representatives doesn't have any and that language is inapplicable here?
Patrick Hardin: That's correct.
Byron R. White: Could I ask you what the Board rule is under the proviso if there is a grievance in the employee who wants to adjust it by himself with the employer? May he bring -- is he entitled to have somebody else come with him even though it isn't the union?
Patrick Hardin: Yes. Although, I think that Mr. Dunn now has by reference to the Houston decision is correctly stated in the law that the -- he may have the next friend. Of course, the union must be permitted to be present and the union also has the statutory right to block, or at least to posed all the was to the arbitration machinery any settlement which it regard his side contrary to the terms of its own collective bargaining agreement now. Thank you.
Warren E. Burger: Mr. Martin.
Neil Martin: Mr. Chief Justice and may it please the Court. In exploring upon what basis of the Labor Board now construes at Section 7 that creates an affirmative right for an employee. I believe it's interesting to look at what the Board does not cite as authority. First of all, there is no citation or articulation of the legislative history as been stated before, the concentration the legislative history, both for the Wagner Act and the Taft-Hartley Amendment was directed at the inequality of employees before their employers on the basis of economic pressure. It is this thrust as Senator Wagner states say in the legislative history that was sought to be counterbalanced. They were sought to be an adjustment of an employees and employer's right to deal economically one with the other. Admittedly, Section 7 does not protect all concerted rights or all concerted activities. No one would state that illegal concerted activities are protected by a Section 7. Not every employer contact with an employee was sought to be protected by Section 7. We submit that based upon the overall view of the legislative history, it is the economic pressure that an employee was unable to exert against his employer on an individual basis that is considered, and is this economic pressure that should be allowed to flow between parties under the statute of Section 7. As NLRA have stated, there is no collective bargaining in a pre-decisional fact-finding investigation. There is no decision here that an employer who deals with employee merely to elicit facts is circumventing the provisions of Section 8 (a) (5) of the Act. In fact, the legislative intent does not manifest an employee may control the employer's avenue of gaining information concerning his operations. The idea of mutual aid or protection has been discussed. What is a dichotomy and perhaps an anomaly is the fact that the Board is taking the position that these collective interest do not rise to a level sufficient to permit the union to be present, but do rise to a level who will permit the employee to institute representational assistance if he so desired. It's difficult for us to understand why if the union requests the representation, it is not permitted, and while the employee requested it is. It seems to us that the same rights would be involved regardless of the party requesting representation. The Labor Board has imputed or implied that an employee when he re-seeks the aid of his representative or another employee is engaged in protected concerted activity, this implies that employee is not seeking self protection or protection against questions which may be embarrassing or particularly proving that that he is seeking to in the future make a situation where other employees will be accorded similar treatment. Now, this is a factor which has not been explored by the record, but it is imputed to an employee by the Labor Board that when he does request that a union representative be present, it is for concerted activity, when in fact it may be for self-preservation as oppose to any effort or motivation on a concerted basis. It's been stated that the contracts in many major companies provide for representation of an employee in an investigatory interview. The fact that this is in industrial situations today, we believe to be evidence of the fact that the right to bargain collectively for the right of representation of employee at an investigatory interview has not been diluted by the prior position of the Board that no right existed in the context of a fact-finding investigation. In fact, the Board has not taken the position today that any of its prior decisions had been reversed. In a prior case of date and typographic where the employer is sought the question employees about errors that they made in proofreading. The Trial Examiner of the Labor Board found that there was no concerted activity and the Board adopted that position, yet the Board has not attempted to reverse that decision or other decisions which have created this dichotomy between investigatory and disciplinary reviews. The idea that an employee is statutorily protected from interviews by his employee, presupposes that there is an adversary condition, that there is a situation where an employee is immediately placed under suspicion or under fear of adverse consequences. And to permit an employee's speculation as to what an employer may do with information that he gathers is to take the employer his unfair labor practice completely out of his intent or purpose. For an employee, may wrongly suppose that an employee's questions and employer's questions may result in disciplinary action. The case that's before this Court involved a suspicion theft. The case that involved the Labor Board decision of Texaco Los Angeles Terminal involved the situation where an employee refused to drive a piece of equipment which he deemed to be defective. In that case, the Trial Examiner found that there was no violation of the Act because the employee on one point had no reason to believe that his job status was in jeopardy. It is difficult for us representing employers to determine which belief of the Labor Board is to be followed, where they adopt decisions by administrative larger as use on a Trial Examiners that questions concerning insubordination do not raised the level of reasonable fear, whereas they say that questions concerning thefts do raise that fear. It's been stated that the prior --
Potter Stewart: In the previous case, we had what seemed to be insubordination case, sassing Mrs. Gerlach or whatever the name was, and the Board came out the same way saying that that created a reasonable fear on behalf of the employee to extent that she was entitled to have a union representative present if she wanted to.
Neil Martin: Yes, but as we understand it --
Potter Stewart: o that Board as I understand in these two cases has made the distinction that you've just suggested.
Neil Martin: No, the cases appeared to exist coequally without the distinction being drawn between while one questioning concerning insubordination would not raised reasonable fear, and while other questioning concerning or insubordination would raise that fear. The test of reasonable fear of an employee has no relationship to the realities of the circumstances. There is no relationship between the results of the interview and whether an employee may reasonably fear that his job sasses in jeopardy.
Potter Stewart: Do you Mr. Martin accept the law of the National Labor Relations Board that at a concededly disciplinary interview, an employee has a right to a fellow employee or a labor representative?
Neil Martin: No Your Honor, I do not because there is no statutory basis for it. It has been created in a situation of the only decision I know which is of the Texaco decision of the Fifth Circuit in 1969. In that particular context, the Labor Board found a violation of 8 (a) (1) because the employer violated the employee's right to union representation, and it was a disciplinary interview.
Potter Stewart: Right.
Neil Martin: Upon appeal, the Fifth Circuit said that they found no basis upon which an employer is required to permit an employee represent to be present, and further that the investigation was not disciplinary, but it was an investigatory.
Potter Stewart: Well then --
Neil Martin: It is that dichotomy which has been created because of the decision of that court.
Potter Stewart: Yes, but you're complaining about the dichotomy that I had a -- which would suggest that you might be accepting the validity of it on the disciplinary.
Neil Martin: Well Your Honor, the only -- in the context of deciding upon which basis an employer will permit an employees' request and will not, it is far more comfortable for an employer to face the disciplinary interview dichotomy than it is the situation which is now pressed upon us by the Labor Board.
Potter Stewart: Now we're dealing here where the question is what does the statute require?
Neil Martin: We're of the position that for the statute does not require union representation, an employee's request for union representation at either --
Potter Stewart: Either kind or area.
Neil Martin: -- an investigatory or a disciplinary interview.
Potter Stewart: Or if anything until and unless --
Neil Martin: Until the man --
Potter Stewart: -- the disciplinary action and there's a grievance.
Neil Martin: Correct. There has been previous decision involving what was termed inchoate grievance. That is a pre-decisional matter. And the Board again found that disciplinary action was so remote that it did not want finding of a violation, and we would take the position that the dichotomy is not soundly based in statute, but it is far more of a reasonable standard for both of the employer and the employee to rest upon, then a decision which is based upon the employees.
Potter Stewart: But again, you're confusing me. If you're -- I don't know if you're taking the dichotomy or if you're saying --
Neil Martin: We --
Potter Stewart: -- no representation the statutory require it at all in any interview.
Neil Martin: That either, an investigatory or disciplinary interview. That is our position.
William J. Brennan, Jr.: If this is --
Potter Stewart: And then, you don't have to worry about any dichotomy?
Neil Martin: That's correct.
Thurgood Marshall: Don't you have to take that position in this case where they call the man who said I understand you steal it.
Neil Martin: I'm sorry, I did not catch all of your questions.
Thurgood Marshall: Don't you have to take that position on the facts in your case where this lady was brought in and said we're investigating you for stealing?
Neil Martin: The --
Thurgood Marshall: That's a little investigatory, isn't it?
Neil Martin: Oh, yes and that's the position that both of the employer and the Labor Board have taken consistently that it was for purposes of investigation.
Thurgood Marshall: So, you have to take that position if you want to win.
Neil Martin: Well the case -- the question concerning disciplinary action, we do not feel is before us on our fact situation, Your Honor.
Thurgood Marshall: Why? Because you didn't discipline them?
Neil Martin: Because the purpose of the interview was not to determine the extent of discipline, nor was there a decision made that discipline would be taken before the interview began.
Thurgood Marshall: But what was the purpose of the interview?
Neil Martin: The purpose of the interview was to determine if there was a basis for the suspicions which had been created in the mind of the employer by a fellow employee of Mrs. Collins, who was under the impression that she had taken more chicken than she had paid for. But if the record is clear that neither party that was present for the employer had authority to make any decision concerning discipline based upon the facts.
Thurgood Marshall: Well, was this interview before the employer or before this man and was protecting, stealing, assemble as his time?
Neil Martin: The Loss Prevention Specialists is a broad title which compasses more than merely thefts. In the retail industry, there is a phrase called “shrinkage” and that can occurred from many reasons. An investigation --
Thurgood Marshall: Including stealing?
Neil Martin: Including stealing.
Thurgood Marshall: Breakage would be --
Neil Martin: Breakage or items not shipped in transit. There'll be many reasons why a loss would present aside from any employee thefts.
Thurgood Marshall: So, management had an expert there, but the lady couldn't have anybody to help her?
Neil Martin: She could have terminated the interview so -- if she had desired and have -- could've refuse to answer any questions, Your Honor.
Thurgood Marshall: Could she have been fired?
Neil Martin: She can only been fired legitimately under the provisions of contract had there been just cause for the termination.
Thurgood Marshall: -- you disagree with the cases before.
Neil Martin: The case that was raised -- the fact situations in a Quality Manufacturing case are distinguished -- are distinguishable from our case.
William J. Brennan, Jr.: Mr. Martin as I --
Neil Martin: Yes, Your Honor.
William J. Brennan, Jr.: -- understand you, you do take the same position as the employer in the previous case; namely, that the correct interpretation of the statute is that considered activities do not include the right of an employee to have representation as an employer will.
Neil Martin: Correct Your Honor; that's correct. The present position of the Board besides leaving other decisions which apparently are conflicts upon their face also placed both the employee and the employee at their own peril. It subjects the employee to a review by persons other than himself or herself in this case as to what is reasonable cause or what reasonable grounds is submitted that had this case been decided in 1971, the Labor Board would have taken the position and no violation occurred. For an Illinois Telephone case, the employee was called in concerning alleged thefts. He was asked concerning a thefts, he requested union representation, the company repeatedly denied that representation, and he furnished a statement admitting the thefts. In that case, the Labor Board found that the administrative law judge's opinion was right and denied the contention of the union that representation should be afforded in investigatory stages of those cases involving misconduct, which could result conceivably in criminal prosecution.
William H. Rehnquist: Well, are you contending that the rule you subscribe to is not only as beneficial to the employer, but also to the employee? I mean it seems to me what you're saying is under the rule, you contend for under the statute, no finding could ever be made in favor of the employee, under the Board's rule occasionally it will be. Now, if I were an employee, I'd rather have a rule that would occasionally benefit me than one that would never benefit me.
Neil Martin: Under the rule as you stated now Your Honor, the rule says where it may possibly result in the decision adversely affecting his employment status. That permits a broad possibility of may use and under that circumstance, it would be very difficult for an employee not to be entitled to protection because he could fear that it may possibly result in disciplinary action under even the most innocuous circumstance. What we are saying is that in an investigatory interview, there is no coercive atmosphere automatically and imputed to it. The Board is further confused the issue by its decision in Western Electric Company. There, the two members, Panelo and Kennedy who have voted that there was no statutory right or joined by Chairman Miller who found that where the employee had previously arbitrated the issue of whether or not an employee is entitled to representations at an investigatory interview. That since, it had been previously decided adversely to the union in the prior arbitration cases that this was sufficient to permit the employer to deny the representation in this case, and he found that it was consistent with the statutory scheme to permit such a ruling. So, where we have a situation where there is no basis upon which an employer's either purpose or intention or knowledge controls his own unfair labor practices, then we have a situation where speculation or subjective state of mind of the employee controls an employer's unfair labor practices. And the role of the union representative is largely unrefined as it is now stated. Before the court at Mobil, the Board took the position that the representative of the Union was merely there present as an advisor, as a conciliator perhaps. If you follow the logic of the Board's position and of the statute where the union is the exclusive bargaining representative of its employees, then perhaps the union would be in the position to preclude the employer from directing any questions to the employee directly, but would have to go through the union as the exclusive representative of the employee to direct any questions concerning the employee's activities. We would summarize by saying that investigatory interview is a premature stage at which the right of representation exists because the purpose is to merely elicit in a true fact-finding investigation the facts of the matter and not to pre-decide or to pre-seal a decision of an employer or the faith of an employee. Thank you.
Warren E. Burger: Mr. Hardin, you have about three minutes left Mr. Hardin.
Patrick Hardin: Mr. Chief Justice and may it please the Court. I would conclude by pointing out to the Court that the statutory language “concerted activity” is more than just language. It defines rather broad concept. This Court in the Jones & Laughlin case upholding the constitutionality of the statute acknowledged that it granted fundamental rights. And the Board's decision as to what that statutory language means and what content it should be given in the real industrial world, is entitled to great weight and should be accepted if the interpretation is reasonable. And it's reasonable here. The Board has fashioned a rule which does not grant and absolute right, the right to the assistance arises only if there is a reasonable objective basis for the fear that discipline is to follow. And even in that event, the employer is given the option of forgoing the interview altogether. The Board has balanced the conflicting interests and has settled on a resolution which is well within the perimeters of the statutory language. Here to return to Mr. Justice Rehnquist's question again, the problem here for the reviewing court is much the same as it is in the Linden and Wilder case this morning. The Congress has left it to the Board to define the reach of the broad statutory language in the first instance. We submit that in both these cases, the Board has reached a reasonable result, and that defines the limits of judicial review in both cases.
Warren E. Burger: Do you know of anything that could prevent every collective bargaining contract to contain a provision that representation would be allowed in all these circumstances -- all is formerly one to one?
Patrick Hardin: There is certainly no legal impediment, whether the parties would regard it as desirable in the context of their particular relationship, but only the parties to individual grievance can do --
Warren E. Burger: Maybe some differences of view and the negotiations on that.
Patrick Hardin: There might well be.
Warren E. Burger: But they could rate it into every contract if there was agreement.
Patrick Hardin: But that of course neglects the question whether Section 7 extends rights in this arena, not only to employees who are represented by union, but also to employees who are not. And the statutory statement of the language in the disjunctive suggests Congress intended to grant some rights beyond the right to engage in collective bargaining through a representative. And the Board has given content to those words here by finding that the right exists where the employee reasonably perceives that he or she needs help and seeks it.
William H. Rehnquist: Under your contention that the employer couldn't by agreement with the union cause the right to be waived on behalf of an employee, could he?
Patrick Hardin: The --
William H. Rehnquist: If it's a statutory --
Patrick Hardin: I believe that follows from the Board's rational Your Honor, although the Board has not expressly spoken to that point. The union might be able to waive its right to respond when the employee ask, but the question whether the union could waive the right of the employee to ask the analysis which the Board has gone through would seem to preclude that result.
Warren E. Burger: Thank you gentlemen. The case is submitted.


Warren E. Burger: We will hear arguments next in 78-5705, Trammel v. United States. Mr. Wiggins, you may proceed whenever you are ready.
J. Terry Wiggins: Mr. Chief Justice, and may it please the Court. This matter comes on for review of this Court as the result of the conviction of Otis Trammel, Jr., the petitioner herein, for aiding and abetting the importation of heroin from the Philippines into Hawaii and the United States and for conspiring with others, approximately nine persons named in the original indictment, for the importation of heroin into the United States. It resulted from the arrest of Elizabeth Trammel on November 6, 1975 in Hawaii as she entered the country carrying a substantial quantity of heroin on a trip in from Clark Air Force Base in the Philippines. At the time of Mrs. Trammel's arrest, she was alone. She was told that she was charged with a serious felony and she was offered the voluntary opportunity of cooperating with the government in exchange for being charged with a misdemeanor and a recommendation of probation or, in the alternative, being jailed for the felony for which she had been arrested. She elected the latter alternative and indicated that she would cooperate with the government, notifying the Customs agents at that time that she intended to take the heroin to Colorado, to deliver it to an individual by the name of Roberts who was then stationed in Colorado Springs, Colorado. That was done under a controlled circumstances and at the first statement given by Mrs. Trammel to the Customs authorities in the Drug Enforcement Administration at that time, she did not in any way implicate the petitioner here, Otis Trammel. After the controlled delivery took place in Denver, Colorado, and Mr. Roberts was arrested together with a Mr. Richardson, Mrs. Trammel was sent on at that time and still told that her cooperation would be necessary and in exchange for her cooperation she was being offered a misdemeanor and a recommendation of probation. She was again interviewed at Denver and at that time once again she did not implicate her husband, the petitioner here. Finally, approximately a month to six weeks after Mrs. Trammel's arrest, she was interviewed in Birmingham, Alabama, which was her family home, at that time she implicated her husband as the part of an importation conspiracy and as an aider and abettor to the initial importation for which she had been caught and she was notified once again that she would have -- that her cooperation with the government would be recognized and that she would receive leniency for that.
William H. Rehnquist: If she had implicated her husband at the very first time she was approached by the government, would your case be any different?
J. Terry Wiggins: Mr. Justice Rehnquist, I don't know that it would be any different, but I --
William H. Rehnquist: You spent considerable time pointing out the fact that she took a while to consent. I didn't see how that was directly involved with the legal principle.
J. Terry Wiggins: Well, I think it is involved with the legal principle is the principle that the government tries in their brief and I assume by argument here today to convince this Court that there should be an exception to the husband-wife privilege, that being the voluntary consent of the witness spouse or one of the parties to the marriage. If that were to be an exception, it seems to me that voluntariness becomes a serious question and her voluntariness is certainly subject to consideration when she is in two prior interviews does not notify the authorities of his participation and only ultimately, with all of the offers on the table, she finally agrees to or she talks about him and agrees to testify against him. It is hard to call that in my estimation voluntary.
William H. Rehnquist: Well, in the two earlier interviews, had she said he did not participate or had she simply not said anything about it?
J. Terry Wiggins: I think she had neglected to mention him in the earlier interviews. She mentioned more people as time went by apparently to get a better deal. The ultimate deal she got is she was not charged with any crime nor convicted of anything; in fact, she was given witness immunity in exchange for her testimony.
Warren E. Burger: Well, in ordinary plea negotiation situation, Mr. Wiggins, where there is no husband and wife problem or the testimonial aspect you have here, do you regard the testimony of the witness who cooperates with the government as involuntary?
J. Terry Wiggins: In certain circumstances, Mr. Chief Justice I think it must be viewed as involuntary but whether it is voluntary or not I think certainly representing a defendant charged as a result of such plea negotiation, it would be the right of counsel in most circumstances to bring that out, bring out the negotiations, to point out what that person has traded for his testimony, and juries are instructed, it has been my experience, to weigh that testimony very carefully where an accomplice is involved, because those people have a self interest.
Warren E. Burger: To come back to my question, do you regard that as involuntary?
J. Terry Wiggins: In certain circumstances, yes, Your Honor.
Warren E. Burger: In what circumstances would you characterize it as involuntary and in what would you characterize it as voluntary?
J. Terry Wiggins: Certainly, Mr. Chief Justice where witness immunity is granted to a granted to a witness who does not want it that is involuntary. Certainly --
Warren E. Burger: Well, did she not want it here?
J. Terry Wiggins: No. You asked me for a circumstance where I would find it to be involuntary. I think she wanted it here.
Warren E. Burger: Yes.
J. Terry Wiggins: Certainly it would seem to me in a situation where a person is offered to either be charged with a serious felony and serve time in prison as a result of that charge or in the alternative to become a witness and not be charged with anything and serve no time, I think there is coercion.
Warren E. Burger: Can you suggest any situation in which the defendant, the possible defendant so testifying is coerced into accepting immunity? Can anyone be forced to accept immunity?
J. Terry Wiggins: A person can be granted immunity without their permission.
Warren E. Burger: Can they be forced to accept it?
J. Terry Wiggins: No, they can elect contempt of court as opposed to the accepting of the immunity and actually testifying.
Warren E. Burger: Well, if they don't want to accept it, they simply take their chances as a defendant and stand trial, isn't that the usual pattern?
J. Terry Wiggins: Not entirely, Mr. Chief Justice. I have seen people granted immunity who didn't want it and would just as soon have stood trial and who opted for contempt as opposed to willingness to testify. That has happened and that is a circumstance where a person didn't want it but nonetheless the result is the same. Some two months after Mrs. Trammel or three months after Mrs. Trammel was caught entering the United States with heroin, the defendants were indicted, three defendants were indicted and six persons were named as unindicted co-conspirators in this case in count two which was conspiracy to import heroin. Prior to the trial of the lawsuit, the matter was here before the court and husband-wife privilege was raised by a motion to suppress, requesting the District Court judge - a motion to sever, excuse me, requesting the District Court judge to sever Mr. Trammel from the other two defendants who were then charged so that Mr. Trammel could claim his privilege in an independent trial. The whole point of the hearing, however, was strictly the privilege question and at that time the District Court judge refused to recognize that such a privilege existed and the government argued that no such privilege existed and the District Court judge indicated that Mrs. Trammel would in fact be required to testify. Subsequently, within approximately three days, the trial began. Mrs. Trammel was called to testify, a motion and order granting immunity were given her, and again the petitioner, Mr. Trammel, raised the question of the husband-wife privilege and once again the court said that the ruling of the court would be the same and basically not recognizing the privilege, only recognizing a communications privilege and noting that the communications privilege would be fully enforced and that she would not be able to testify to privileged communications. In addition, at the time that this matter was argued before the United Sates Court of Appeals for the Tenth Circuit, the government once again, according to the Circuit Court's opinion, took the position that the privilege that I am here to argue today just didn't exist in effect. The Circuit Court of Appeals found that the privilege did in fact exist but took the position that because of the fact that she was a co-participant or a co-conspirator in the case, and also because of the fact that she was granted witness immunity, that she should have been permitted to testify and that it did not violate the precedent set forth in Hawkins v. United States, which is the last case in which this Court came face-to-face with the privilege that is before the Court today. In the Hawkins case, the Court held, this Court has held that the privilege was an absolute one, of one spouse to keep the other spouse off the witness stand and that that privilege took precedence over, in the case of Hawkins at least, the conviction of Mr. Hawkins, his wife was called to testify against him and who was, I think it is clearly arguable from the case and clearly notable within the case, that his wife was herself a co-participant at least to the degree that she was running the house of prostitution to which the young lady being transported across state lines was to go at the conclusion of the trip and may well have been an aider and abettor, may well have been a co-conspirator in that case.
John Paul Stevens: Mr. Wiggins, maybe it is shown by the record, but I didn't see that.
J. Terry Wiggins: Mr. Justice Stevens, I think the opinion shows that she was running a house of prostitution in state in which the young lady was going, and I think it also shows that that is where the young lady ended up. Whether or not she was a participant is subject to some speculation.
John Paul Stevens: I thought it only showed that she was a former prostitute. I didn't realize that --
J. Terry Wiggins: I think the record also indicates that -- I think the report of the case also indicates that she testified that the young lady was coming to her establishment.
John Paul Stevens: I see.
J. Terry Wiggins: At any rate, Hawkins made the privilege -- it is my position an absolute privilege, the government argued at that time the same thing that the government argues before this Court in its brief now, that the privilege should reside in the witness spouse rather than the defendant spouse, and that the witness should be the one to make a voluntary determination as to whether or not he or she should testify when his or her spouse is accused and on trial. This Court rejected that argument in Hawkins, and I urge that it be rejected again. I would also note that it is clear from the legislative history of the rules of evidence that this Court took the position in approximately 1974 when the rules of evidence were being considered by the Congress, this Court sent up rules of evidence and the husband and wife privilege sent up by the Advisory Committee was identical to the privilege that is presently set out in Hawkins.
Warren E. Burger: You don't regard that kind of a decision as equivalent to a holding of the Court, do you?
J. Terry Wiggins: No, Mr. Chief Justice, I don't, but it does seem that it would have been, if the Court were inclined to change the Hawkins situation, that the rules of evidence -- it would have been an ideal time to formulate a rule that was more consistent with the Court's thinking.
Byron R. White: Well, what did Congress do about that suggested rule?
J. Terry Wiggins: Excuse me, Mr. Justice --
Byron R. White: What did Congress do about that suggested rule?
J. Terry Wiggins: What Congress did was it took the 13 rules that were sent up on privilege and got rid of all except one. Congress rejected both the Advisory Committee's suggestion of rules as well as the Justice Department's suggestion of the --
Byron R. White: And then came up with one rule, 501?
J. Terry Wiggins: That's correct.
Byron R. White: And said that privilege shall be left to the common law process?
J. Terry Wiggins: They say it should be left to common law as determined by reason and experience, the same thing they --
Byron R. White: Do you think then what Congress has done to date, that we would be forbidden to overrule Hawkins?
J. Terry Wiggins: Yes, Mr. Justice White, I think you would be --
Byron R. White: Not by 501?
J. Terry Wiggins: Not by 501, but I think by Title 28, section 2076, that you are in fact forbidden, at least arguably so from overruling it, and I have to confess that --
Byron R. White: We wouldn't be overruling it by proposed rule.
J. Terry Wiggins: It seems to me that if --
Byron R. White: This 2076 deals with the rulemaking process --
J. Terry Wiggins: That's right.
Byron R. White: -- and all the evidence rules except privilege would just have to -- would go into effect within 180 days unless one House or the other acted. But any changes by rule about privilege, Congress would have to affirmatively approve.
J. Terry Wiggins: That's right.
Byron R. White: And I take it that would be whether you created a new one or overruled an old one.
J. Terry Wiggins: Or abolished or modified an old one. But because privilege is set out specifically in 2076 as having to have the approval of Congress, and because the only thing relative to privilege in the rules of evidence, Rule 501, the only thing relative at all to privilege is in that rule. It seems to me that --
Potter Stewart: Well, Rule 501 is utterly meaningless because it isn't left to the common law process. 2076 leaves it to the legislative process exclusively.
J. Terry Wiggins: It seems to me that it does. It seems to me that --
Potter Stewart: Well, 501 is utterly meaningless.
J. Terry Wiggins: If you read the two together, I think you have to come to the conclusion that the Congress is encouraging the Court to reconsider privilege but is holding the string that they want to --
Byron R. White: We should decide a case and then send it over to Congress to see if our decision should be --
J. Terry Wiggins: No, Mr. Justice White, I don't think that is what they are saying.
Byron R. White: Well, should we dismiss this case then and say that we have no jurisdiction to entertain your petition?
J. Terry Wiggins: No, I --
Byron R. White: Or should we summarily reverse on the grounds that the Court of Appeals had no business tinkering with Hawkins in light of 2076?
J. Terry Wiggins: That is strongly arguable, that it should be summarily reversed for that very reason and that the Advisory Committee on the Courts should be the ones to recommend changes in the rules or the Justice Department to recommend changes in the rules to Congress and that Congress should act on them.
Byron R. White: Well, are you suggesting then that privilege questions are just non-justiciable?
J. Terry Wiggins: I'm not suggesting that they are non-justiciable. What I am suggesting is that unless the last sentence in 2076 means nothing, it has to be read with 501, and the only way they can be read together is that rule changes must go through Congress.
Byron R. White: Well, every application of a privilege rule that would -- say there is a conflict that develops between two Courts of Appeals.
J. Terry Wiggins: All right.
John Paul Stevens: Now, can we resolve it or not?
J. Terry Wiggins: I think that that is your duty.
John Paul Stevens: Or do we have to wait until Congress resolves it?
J. Terry Wiggins: I think that is part of your duty to resolve it.
John Paul Stevens: Well, how can we? We would be changing the law in one way or the other.
J. Terry Wiggins: Where privilege is concerned, you might be required to reverse it were the Court of Appeals to --
Potter Stewart: Say it was 4-to-5 between the Court of Appeals, they just split 4-to-5. Now, if we decided one way or the other that the law would be changed in one group of circuits or the other --
J. Terry Wiggins: That's correct.
Potter Stewart: -- and it couldn't be changed until Congress said or not?
J. Terry Wiggins: 2076 seems to indicate that is a fact, and I don't pretend to know that that is what it means.
Warren E. Burger: Are you saying that Congress said they were going to leave it to the courts, then leave it to the courts to do what?
J. Terry Wiggins: Mr. Chief Justice, they said they were going to leave it to the courts, at the same time they enacted something that said the courts must come to us for permission where privilege is concerned. I can only --
Warren E. Burger: The courts or the rulemaking process?
J. Terry Wiggins: I think they are talking about the rulemaking process.
Warren E. Burger: We aren't sitting in a rulemaking process now, are we?
J. Terry Wiggins: Absolutely, you're not, but we are discussing a rule before this Court that was left in a certain way by Congress as a rule they didn't want changed. I'm not arguing for the fact that a decision of this Court in any way would have to be sent to Congress for the Congress to say yes or no to it. I am only saying that that is the only suggestion that can be made from 2076 as I read it.
Potter Stewart: So I can only read you as saying we should ignore it.
J. Terry Wiggins: Unfortunately I had considered that seriously when I came up here and suggesting that, because it does seem to me to be inconsistent and no consistent way for this Court to deal with it in this case.
Warren E. Burger: Do you suggest that they were advocating anything other than how the rulemaking process would function?
J. Terry Wiggins: No. They are advocating how the rulemaking process should function.
Warren E. Burger: Not how we were to decide a future case, as Justice White suggested, resolving a conflict in the circuits?
J. Terry Wiggins: I agree with you there, not how you should decide cases.
Warren E. Burger: So we should go ahead and decide the case.
J. Terry Wiggins: Yes, Mr. Chief Justice, you should in my favor. But I also think that when they say that, that it is perhaps somewhat presumptuous of the circuits to then decide a case contrary to Hawkins and contrary to the prior law and say on a case by case basis we have decided to change it when the Congress wanted to retain the rulemaking power as a result of that statute. And I point that out because it is there. I am not suggesting in any way that it is necessarily controlling in this case.
Warren E. Burger: How much weight do you put on the suggestion that appears in the Hawkins case and elsewhere that this has a deleterious effect on the marriage relationship when the husband or wife goes into court and testifies against the other and perhaps sends the other spouse to prison? You recall, Justice Black seemed to rest to a significant extent on that aspect.
J. Terry Wiggins: Yes, Mr. Chief Justice, and I agree with that. I think I agree very strongly with the statement that it was Mr. Justice Black's opinion at that time that it would destroy almost any marriage for one of the marriage partners to be called as a witness against the other, and I think that is true regardless of the outcome of the trial of the case, because it seems to me if a spouse stands up and testifies in open court against his or her mate, that the marriage is probably at that point irretrievably shattered and would not return to any semblance of trust between the two as a result of the testimony. So I think that the situation that Mr. Justice Black suggests early on, I think that is still the same situation today.
Warren E. Burger: The concurring opinion suggested that this whole concept was a relic of the past and has no place in the modern world of women's lib -- not quite in those terms. What do you have to say about that?
J. Terry Wiggins: It is part of what Mr. Justice Stewart suggested in the concurring opinion. However, he also suggested in the concurring opinion, which I agree very strongly with, that no one case is the case that should change this if it is a relic of the past, and we submit that it is not, but that the Advisory Committee for the courts should consider this matter seriously and if a change should be made it should be an intelligent change on that basis.
Warren E. Burger: We have changed some other doctrines and rules of ancient lineage, haven't we?
J. Terry Wiggins: Yes, Mr. Chief Justice, we have. There is certainly no question about that. But this rule strikes at the very heart of the family, of marital harmony which is I suggest an institution of authority, a non-governmental institution of authority in this country which undergoes a significant amount of fire in today's times as a result of the way society operates, and I think that this Court should strongly support the institution of the home, the institution of marriage against attacks in this kind of situation against that institution to testify and in effect break the home.
Potter Stewart: This case was tried in the District Court of Colorado?
J. Terry Wiggins: Yes, Mr. Justice Stewart, it was.
Potter Stewart: What is the law of Colorado? Perhaps you have already been asked this, but if so I didn't get the answer.
J. Terry Wiggins: The law of Colorado is --
Potter Stewart: With respect to this question.
J. Terry Wiggins: -- it would be identical to the law in the federal court with respect to this question. It is the privilege of the accused to keep the witness off the witness stand if the accused chooses to use that, utilize the privilege.
Potter Stewart: Not identical to the law in the federal courts as construed in this case by the Tenth Circuit.
J. Terry Wiggins: Correct, not identical, but identical to what the Hawkins --
Potter Stewart: The general Hawkins rule.
J. Terry Wiggins: The general Hawkins approach to this particular privilege would be identical in Colorado.
Warren E. Burger: We will resume at this point at 10:00 o'clock in the morning, Mr. Solicitor General.