Warren E. Burger: We'll hear arguments next in 73-765, International Ladies' Garment Workers' Union against the Quality Manufacturing Company. Mr. Dunau.
Bernard Dunau: Mr. Chief Justice, may it please the Court. The question of this case presents is whether an employer may coerce and an employee to participate in an interview with that employer unaided by a union representative where the outcome of the interview is reasonably believed by the employee to subject him to the risk of disciplinary action. More specifically in terms of this case, an employee is called in to talk to the employer and the Board finds that the employee reasonably fears disciplinary action may that employer fire the employee because she refuses to submit to a private interview? May that employer fire the two employee representatives or fellow employees who are the shop ladies in the shop because they seek to provide the representation requested of them.
Potter Stewart: And all of these Mr. Dunau against the background of the collective bargaining agreement to the silent of the subject, right?
Bernard Dunau: That is correct sir. Well, I should say the Trial Examiner did find that the agreement was not silent on the subject. The Trial Examiner construed the agreement to mean that by agreement, the employer was required to confer the representation in this instance. We don't think that's determinative but if the agreement were silent or if the agreement certainly is as construed here that is the question that is presented. We don't have in other words an agreement which bars union representation.
Potter Stewart: Their claim is that the law -- the statute requires --
Bernard Dunau: Our claim is that the statute confers the right. Yes sir.
Potter Stewart: When there is a collective bargaining agreement?
Bernard Dunau: No, our position is --
Potter Stewart: Now, when there is a bargaining representative?
Bernard Dunau: Well, no it wouldn't even go beyond that because our view would be that concerted activity for a mutual aid or protection would exist even they -- though there were no union in the picture. Suppose for example an employee is called in to a private interview in which he reasonably fears subjection to discipline because she fears if she asked let's say fellow employee to come along with her. In our view, that is concerted activity when that fellow employee is willing to furnish the aid. She expects or she can surely be expected to suppose that when her turn comes she will be helped so that even in a non-union situation, helping the other employee is concerted activity for mutual aid or protection.
Potter Stewart: But how can you do what in the absence of a collective bargaining agreement in the absence of bargaining representative the employment would be an employment at will, wouldn't it?
Bernard Dunau: But it is not an employment at will in the sense that when an employee is exercising a statutory right that that employee may be fired for exercising that right and that statutory right concerted activity for mutual aid or protection. One employee asked again another to assist him in meeting with the employer as concerted activity for mutual aid or protection.
Thurgood Marshall: You litigate that where.
Bernard Dunau: I beg your pardon sir?
Thurgood Marshall: Where would you litigate that?
Bernard Dunau: Before the Board.
Thurgood Marshall: Before the Board?
Bernard Dunau: Yes, sir. I'm arguing the Harter case because that is not the case we have here. We have a case here of union representation.
William H. Rehnquist: Does that fellow employee had -- does the employer have to pay the fellow employee for the afternoon he takes off?
Bernard Dunau: No sir. He doesn't have to pay and even under a collective bargaining agreement unless the collective bargaining agreement provides for compensation for the steward in the conduct of union business. There are such agreements.
William H. Rehnquist: But it's at the option of the fellow employee to decide whether or not he takes off or not? If the first employee is summoned to interview with the employer.
Bernard Dunau: No, that may not be at his option. The employer may be required if he doesn't want the fellow employee to do it during union hours or during working hours to say, “Okay, do it after working hours.” But it is not a privilege in the employer to refuse to meet or to compel a meeting with an employee without assistance of the union -- without the assistance of a fellow employee if that is requested. I think the facts if they are stated should focus this issue rather sharply. On the employer side, we have three people; a Lawrence Gerlach who was the president of the company, his wife Kathryn Gerlach who was the production manager, their son Lawrence Gerlach who's the general manager -- junior, yes sir. There's a certified bargaining representative, certified to represent the production employees. On the union side with respect to day to day problems which arise there is a shop chairlady called Delila Mulford, there is an assistant shop chairlady called Martha Cochran, they were elected to their posts. And then there is a long time employee a Catherine King about whom these events center. On Friday October 10, 1969, the three Gerlachs, the shop chairlady, Catherine King and two other employees meet. The employees are complaining about the wage rate. They say they can't make a decent wage under the piecework system in effect. The meeting ends on an acrimonious exchange. The Gerlach say “If you don't like it here, go elsewhere.” That later that same afternoon, Catherine King shuts down her machine. She starts gesturing with her hands. She causes a minor disturbance. Mrs. Gerlach tells hers resume production. Catherine King tells her, “Mind your own business.” At that point, Mrs. Gerlach says to King, “Go down and see the president Mr. Gerlach.” She goes but on the way she asks the shop chairlady to accompany her to assist her at this meeting with the president. When they get there, the Gerlachs object to the presence of the shop chairlady and she responds, “Catherine paid her dues and she's entitled to have me be there.” Since Catherine refused to submit to the interview without the presence of the shop chairlady and since the Gerlachs refused to have her there, they were both sent back to their work stations. The first blow fell on Sunday, October 12. Mulford is called on the telephone, she's told she is suspended for two days and the reason is that she attempted to represent Catherine King. The next day, Monday October 13th, again, King is called to the office. This time she asked the assistant shop chairlady, Martha Cochran. Now, Martha Cochran to which accompany her. Marta Cochran's presence is subjected too. Cochran asks, “What do you want to speak to King about?” She is told, “We want to take off where we left off on Friday” to which Cochran responds well, “I'm sorry, but if that's what you want to talk to her about that is union business and she has asked me to represent her. I am a union steward and that's my duty.” Again, Gerlach was refused permission to return to work because she refused to submit to a private interview. Cochran's timecard was pulled from the rack. The next day, Tuesday, October 14th, Cochran is now suspended for two days for seeking to represent King. And King is not allowed to return to work because she refuses to submit to an interview without the presence of her union representative. Wednesday, October 15th, Mulford's two days suspension is at an end. The three of them go to the Gerlachs. Cochran is told she can't return to work because she has got one more day suspension. King is told she can't return to work unless she submits to a private interview. Mulford is allowed to return to work but she's admonished to mind her own business. And she responds, “I was minding my own business.” Catherine had a right to representation as well as anybody else. And the events culminate on October 16th. Cochran suspension is now at an end. All three go to seek Gerlach. Cochran gets her timecard. She's allowed to return to work. King is told submit to a private interview. She asked with Delila Mulford, the shop chairlady. She is told, “No, not with Delila.” She is also told that, “If you walk out that door if you again refuse to submit a private interview, you're finished.” She walked out the door, she was finished. Mulford asks, “What about me?” She is told, “You're finished too.” That's two of them. Cochran has left but not for a very long time. That day, she submits or tries to submit written grievances to Gerlach, Jr. The written grievances complaining of King's discharge, her suspension for two days, Cochran's -- Mulford suspension for two days, and her discharge. Gerlach, Jr. says, “I've got no time to full with them damn things. I'm going out to town.” She puts the grievance on the desk. He picks it up and throws it in the trash basket. Though Jr. or Gerlach, Jr. takes her timecard from the rack, he tells that “You work this aftern -- this morning but you're going to work this afternoon.” She then goes to Mr. Gerlach, Sr. She asks “Are you fired -- am I'm fired?” And she's told, “You wanted to draw unemployment compensation, go draw it?” And that's the end of the third question. Now, the Board and the Court of Appeals are on agreement as to one matter. The Board found and the Court of Appeals agreed that Cochran's filing was an unfair labor practice because she had presented a grievance. The acts fell after she presented a grievance that was protected union activity and her reinstatement with back pay is required.
Byron R. White: That issue is not here?
Bernard Dunau: That issue is not here Your Honor. There is no cross-petition. The Board and the Court of Appeals disagree as to the Mulford and as to King and as to Cochran's suspension for the two days preceding her discharge. And as to that the Board finds Cochran -- I'm sorry, King reasonably fear that she would be subjected to disciplinary action in the event or as a result of the outcome of this interview. Since she reasonably feared subjection to disciplinary action the employer had two alternatives. If the employer wanted to talk to her, she was entitled the employee to have the union representative there at her request. The employer if he didn't want to talk with her with the union representative present was free not to have the interview at all. But the employer could not have it both ways. He could not have both an interview with the employee and effacement of the union representative. In the Board's view and we can summarize it in the two sentences it wrote in the later case. It is a serious violation of the employees' individual right to engage in concerted activity by seeking the assistance of his statutory representative if the employer denies the employee's request and compels the employee to appear unassisted at an interview which may put his job security in jeopardy such as --
Byron R. White: May you just to help me a little bit.
Bernard Dunau: Yes, sir.
Byron R. White: It all sounds to me like where there's reasonable belief as in this brings as right back under subjective criteria measurement, doesn't it.
Bernard Dunau: No sir, I don't believe it does unless we are to say every time we have a standard which says, “We will determine what has done by reference to what a reasonable man in the circumstances would do if that is subjective then it is subjective. We do as we do in many other fields we say, “Action may be taken on the basis of reasonable belief if that is subjective, then we are subjective.” But if as we had supposed the very notion of reasonable belief is that it is not subjectivity that controls that should determine reasonable belief by observation of external circumstances and what based on those external circumstances one can reasonably infer, then there is no basis for saying there is any subjectivity to the standard which the Board has adopted. And as to that standard, if I may continue that with respect to it, we have had experience, there have been Board cases in this case, there was no question and could be no question about the employee's reasonable basis for fear. In the next case, there surely could be no question that the employee reasonably feared loss of her job. In the case which the Seventh Circuit decided a case of alleged theft, there was again no question of reasonable belief. When these things occurred under collective bargaining agreements, when they occur when arbitrators interpret collective bargaining agreements, when they occur as a matter of everyday routine in many plans; the obstacle is not any concern that the employee has no reasonable belief.
Potter Stewart: In this case Mr. Dunau, there have been reasonable belief as a matter of discharge when she didn't done anything that under the collective bargaining agreement permitted discharge, isn't that she?
Bernard Dunau: Had she done anything? I'm sorry Your Honor.
Potter Stewart: That under the collective bargaining agreement would warrant discharge all that she have done is along with her four other people in the morning and protested that the existing piecework wage rate hardly allows him to make a living.
Bernard Dunau: The basis for a reasonable belief sir, I think that the illustrated like what Mrs. Gerlach testified too at the hearing at page 79.
Potter Stewart: Of what?
Bernard Dunau: Of the single appendix, Your Honor. On cross-examination talking about Mr. Gerlach, Sr.
Potter Stewart: 79?
Bernard Dunau: Page 79 sir. “You wanted him to correct her, didn't you? No sir, I wanted to take her down because she sassed me. You wanted your husband to correct King for this sassing? Yes!” Now, I don't see how it can be said when Mrs. Gerlach says she want to have King corrected for sassing that at least there is not a reasonable basis for apprehension that she will be reprimanded or suspended or indeed perhaps discharged. We know this employer was fast on the trigger. He did in fact suspend two people and he did discharge two people.
Potter Stewart: Well, could that -- under the collective bargaining agreement could he has been discharged or suspended for being sassy?
Bernard Dunau: That would depend upon what an arbitrator would be determined when the case was presented to --
Potter Stewart: What did the agreement provide the suspension or discharge?
Bernard Dunau: That there shall be no suspension or discharge without just cause. The question for the arbitrator would then become is it just cause to suspend or discharge this employee because she sassed her boss. I think I know what my answer would be but I don't know what a particular arbitrator's answer would be under the circumstances.
Potter Stewart: Well, what Junior's answer might have been there?
Bernard Dunau: Or what Junior's answer might have been, yes. But it is certainly clear and when she is asked to go to the boss' office following an altercation with the boss' wife that an employee has reasonable grounds to fear the imposition of discipline.
Byron R. White: Mr. Dunau, would you go so far as to impose on the employer duty to inform the employee of her right to representation?
Bernard Dunau: No sir, we do not take that position. If the right exists by statute, the unions will be sure to inform their employees of what their rights are. We do not expect the employer to inform the employee of his rights.
Byron R. White: Is this a matter often covered in collective bargaining agreements supposed to be?
Bernard Dunau: It is covered in collective bargaining agreements. I'm unprepared to say the incidents of the coverage. It's covered in major collective bargaining agreement. It's in the Steelworker's agreement, I believe in Goodyear, I believe in Auto, I have seen it in other agreements but I have no basis for saying the incidents of it.
Byron R. White: Is this -- do you agree that the origin is not in the duty to bargain or is it in the right to collective action?
Bernard Dunau: The origin of the duty as it exist and found in this case is Section 7 and not Section 8 (a) (5).
Byron R. White: Do you agree with that?
Bernard Dunau: If I had my druthers it would be both, Your Honor. It would Section 7 and Section 8 (a)(5) but saying it is not Section 8 (a)(5) does not compel the conclusion is not also Section 7.
Byron R. White: Well, yes. I just want to ask you then what about it when there's no union.
Bernard Dunau: If it were an 8(a)(5) then there would be no right in the employee because there'd be no bargaining representative since I placed it or the Board places it in Section 7, the bargaining representative's presence is a matter of indifference because an employee when she seeks the help of her fellow employees to engage in concerted activity.
Byron R. White: I understand that she could request somebody else besides if there is a bargaining agent could request somebody else beside the bargaining agent to go with her.
Bernard Dunau: That depends on the reading of proviso. On my reading of a proviso yes but there is rather respectable authority the other way.
Byron R. White: Well, what is the --
Bernard Dunau: The proviso of Section 9 (a) --
Byron R. White: Maybe if we can wait some, we might wait some -- if we happen to agree with you in this case we might get another one then as to what's the employer suppose to do when the union wants to be there but the employee wants somebody else?
Warren E. Burger: Or a private lawyer?
Bernard Dunau: If there is a bargaining representative and that happens we're going to have I'm afraid one grand hassle as to what the proviso to Section 9 (a) means.
Byron R. White: Well, I take it I think that also means maybe something that isn't in the bargaining agreement?
Bernard Dunau: Well, if it's settled in the bargaining -- well, that's --
Byron R. White: We might try this on other case.
Bernard Dunau: We may try to settle in the bargaining agreement but if there's a statutory right in the employee under the proviso it doesn't matter what we put in the agreement. We can't make an agreement which abrogates what the employee is entitled to(Voice Overlap).
Potter Stewart: In Section 7 and gives the right that you were asserting?
Bernard Dunau: Section 7 gives the right we are asserting, yes Your Honor.
Potter Stewart: And nothing in the collective bargaining agreement could supersede it, could it? If any employee is entitled statutorily under Section 7 to bring any person of her choosing who was a fellow employee. I don't think it would cover a lawyer but collective or concerted activity for other mutual aid or protection that's the language you were relying?
Bernard Dunau: That's the language we're relying on but I would have to say in candor, if there were a bargaining representative and a collective bargaining agreement I think we would be required to mesh that general language of what the meaning of the proviso is and I'm not sure that that is very easy question.
Potter Stewart: Right after the grievance is filed?
Bernard Dunau: After a grievance is filed as I recall the law generally in this area, the Board says and the courts have agreed, “You cannot have a rival union present the grievance.” I don't believe they have said that you cannot have an experience fellow employee in to help --
Speaker: Inexperience --
Bernard Dunau: -- or inexperience someone that you trust that would like to have with you.
Warren E. Burger: We'll resume there at 1 o'clock.
Bernard Dunau: Thank you. [Lunch Recess]
Warren E. Burger: Mr. Dunau, you may proceed.
Bernard Dunau: Mr. Chief Justice, may it please the Court. Justice Rehnquist asked about whether any employee who was asked to represent another may just walk off the floor at his wish. There is a particular finding of fact in this case which disposes of this problem at least for this case. Turning to and this is on page 8 (a) of our petition -- the white. Turning next to the company suspensions of Mulford and Cochran, the company claims that both employees were suspended for being away from their machines without permission. The Trial Examiner finds this reason was protectoral. There is ample evidence in the record to support and we adopt this finding. In particular, we note that Mrs. Gerlach testified that union chairlady had left the floor in the past on union business without being disciplined. It follows that to despair a treatment here was motivated by the company's desire to punish Mulford and Cochran for performing their duties as union chairladies in seeking to represent King at the conference that the company requested. We have taken the position that at the heart of this case is Section 7 and that it is irrelevant to this case that there may be no cantonment Section 8 (a)(5) bargaining obligation. We think we can illustrate it by a case that this Court has already decided one called Washington Aluminum where a group of workers and protest against the lack of heat in the plant walked out as a body. They were discharged that discharge was held to the unfair labor practice because these employees were engaging in concerted activity for mutual aid or protection. Yet those same employees did not and could not have the advantages of bargaining because they had no bargaining representative and precisely here as in that case, the concerted activity for mutual aid or protection existing, the employees were free or should be free of reprisal for that conduct whether or not the employer had an additional obligation to bargain with the union representative. In this case, we think that union representation is surely at the essence of concerted activity for mutual aid or protection. Employees joined unions for the precise purpose of pulling their strength and dealing with their employer on equality. In this case, the employees pulled their strength. They elected one of their number to represent them. When that person elected by the others to represent them seeks to provide the representation which the employee asks it is concerted activity for mutual aid or protection in the most simplistic sense of that term. That view is also consonant with what the Section 7 is all about. It is all about eliminating individual helplessness in dealing with any employer and it is especially manifest in this kind of situation when an employee is asked to confront his employer in a situation where the risk of discipline exists that employee is in a precarious position. That employee may be in experienced, he may be ignorant, he may be frightened, he may not have -- be unable to express himself. Those disadvantages are overcome by having a union representative at the interview so that he is not exposed to unmerited discipline because he is scared, is frightened, is inarticulate.
Warren E. Burger: Have you cited us any cases Mr. Dunau on this matter of having some next trend or representation in grievance procedures generally?
Bernard Dunau: No, sir, we have not -- the reason we have not is that in this case that no conflict arises between what the representative wants done and what the individual employee wants done. Now, --
Warren E. Burger: But it's common practice in grievance procedures to have the employee accompanied by someone, is it not the shop steward or --
Bernard Dunau: Ordinarily, at the first step of the grievance procedure under a union contract, the employee is given the option either to present the grievance to the foreman on its own or to have the union representative with them --
Warren E. Burger: Except the employer (Voice Overlap) --
Bernard Dunau: I'm sorry, the employee is given the option either to go it alone if that's what it wants or to have his union steward if that's what he wants. Now, I did mention something about an experienced friend or inexperienced friend accompanying the employee. And what I had in mind was this decision used to a company versus the Labor Board out of the Fifth Circuit in 147 F.2d 69 which was a pre Taft-Hartley decision in which the Court of Appeals held that a rival union could not represent the employee but it went on to say, “We think an inexperienced or ignorant griever can ask a more experienced friend to assist them, but he cannot present his grievance through any union except the representative.” On the other hand, the representative were not asked to present a grievance but it's attending to safeguard the collective bargaining cannot exclude the griever and withdraw his grievance or destroy it by not permitting its consideration. Now, the extent to which the proviso is cut into what would otherwise be the exclusive authority of the representative is an extraordinarily difficult and in my view still unresolved problem but we don't have it in this case because in this case we have consonants between what the employee wants. He wants representation by his union steward that's what he is entitled to, that's what was foreclosed to him by the employer statutes.
Harry A. Blackmun: And if the employer says, “No, I won't talk to you if you have your representative along.” The Board says, “He need not talk but he can terminate the interview but if he does that and then fires the man without any further conversation that is automatically an unfair practice.
Bernard Dunau: Well, if the firing is because he refuses to talk without the present of the representative that is an unfair labor practice that is this case.
Harry A. Blackmun: But what if he says, what if the reason is he says it's because you were doing bad work or something and if he can sustain that he can fire him.
Bernard Dunau: Because then the discharge is not because the employee refuses to submit to a private interview. The discharge is because the guy was negligent or otherwise inefficient. If that is the reason for the discharge, the only recourse the employee has is under his collective bargaining agreement to present the question to an arbitrator to determine whether just cause for discharge existed. It is not at that point of Labor Board question.
Warren E. Burger: Well, then do I understand that what you're telling us now is that the employer could reject the presence of the second person?
Bernard Dunau: So long as at the same time he terminates the interview. He can't have it both ways. If he wants the interview and the employee request it, the union steward must be allowed to participate in the interview.
Warren E. Burger: But you did not -- that means in response to Mr. Justice White to say that if there were substantial grounds for the discharge, the discharge could be sustained on its merits. So, did you answer it that way?
Bernard Dunau: Yes, I did answer that way and that's precisely illustrated --
Warren E. Burger: Well, then I'm a little bit lost as to what's the consequence of refusing a conference with the presence of the second person?
Bernard Dunau: Let me see if I can illustrate it by the --
Byron R. White: It's like that it hasn't happen in this case?
Bernard Dunau: I beg your pardon sir.
Byron R. White: The risk is that it might be found that he's fired because he refuses interview.
Bernard Dunau: In this case, that was the finding that was the evidence that the discharge was because you refuse to submit to a private interview.
Warren E. Burger: But the employer could refuse to permit the second person to be present but he would nevertheless be sustained in the dismissal if he had appropriate grounds independent grounds?
Bernard Dunau: That is precisely the situation that was presented to the Seventh Circuit in the Mobil case where the employer refused to grant the individual's request to be represented by a steward. But the employees were then discharged for theft. The Board found that the discharge is for theft, were real that they were not a pretext to discharge these employees for refusing to submit to a private interview. And therefore, the order in that case was to the employer cease and desist from insisting on a private interview when the employee requests representation but since the discharge was not for that reason but for alleged theft that question was for the arbitrator.
Potter Stewart: But Mr. Dunau, the employer in your submission cannot refuse to allow the second person to be present at the interview. He must either accept the second person at the interview or not have the interview.
Bernard Dunau: That's correct Your Honor.
Potter Stewart: Right.
Bernard Dunau: That's the alternative.
Potter Stewart: Right.
Bernard Dunau: Thank you sir.
Warren E. Burger: Mr. Jenkins.
John E. Jenkins, Jr.: Mr. Chief Justice and may it please the Court. This case raises an interesting question before the Court to determine the scope of the right of an employee to representation and his dealings with management. The facts of the case are simple. The issue in the case I think everybody agrees on and the under penning legally of where the authority lies to order such a right by an employee is not in dispute since Section 7 of the National Labor Relations Act as its been amended. Now, a number of situations exist with respect to the possible scope of representation rights of an employee under Section 7 of the Act. There is nothing in the wording per se of this Section of the Act which really throws any direct light on the subject. For example, there is nothing in Section 7 that says, “An employee shall have the right to a representative and that these situations or spells it out.” The Act simply says that an employee has the right to engage in collective activity concerted activities as the actual word of the statute for purposes of collective bargaining and other mutual aid and protection. Well, the word concerted of course has a technical meaning that is being considered by a number of courts and it is generally been held to mean group activities for representation activities that the group as a whole was interested in.
Warren E. Burger: What about the language through representatives?
John E. Jenkins, Jr.: To engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection through representatives. Yes, Your Honor. The question here is whether or not the word “concerted” embraces one employee such as we have in each aspect of this case or in many the cases that have been held whether that concerted applies to them with respect to their own individual rights with respect to an employer at the time. For example, in a disciplinary situation involving one employee does that involve a concerted or group activity. Now, there it is clear that where a group activity is involved then the employee have a right to representatives. But it does not say as I read the Act here that an employee has the right to a representative to handle his own personal individual problems which may arise on a one to one relationship between himself for his employer.
Potter Stewart: I take it if you're going to look at the statutory language it's maybe rather important to look at it a little more carefully. The representative language has to do only with the collective bargaining.
John E. Jenkins, Jr.: That's right.
Potter Stewart: The right to bargain collectively through representatives of their own choosing, as I understand it, that's not involved here.
John E. Jenkins, Jr.: That's correct Your Honor, it does not.
Potter Stewart: What is involved here is the phrase or the clause and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.
John E. Jenkins, Jr.: Yes, Your Honor.
Potter Stewart: That's the clause?
John E. Jenkins, Jr.: Yes sir, that is the clause which we all agree that if there is a statutory right to the employee to have a representative it flows from that specific language and the specific phrase. In Section 7 which --
Potter Stewart: Which is engaged in others concerted activities for other mutual aid or protection, is that it?
John E. Jenkins, Jr.: Yes Your Honor, that's right. We all agree that if there is the power or the right it comes from those specific words. Now, it's interesting I think when you look back over the history of this situation that no court and certainly not the Labor Relations Board has ever said that on the basis of that language, an employee has the right to a representative with him at all times and at all places under all circumstances. In other words, no one has ever contended that that language there gives a broad across the board right to an employee to have a friend with him or to have a union representative with him under any circumstances when management plucks to him. Down through the history, up until quality came alone over a period of almost 25 years. The rights in this regard were exceedingly limited. A dichotomy had developed by virtue of Board decision. A division of this whole, if you please which would the whole being of the right of an employee to have a representative with him at any time under any circumstances. No one said that was the status of the law. No one interpreted Section 7 that way, but they carved off one piece of that whole and said, that where there is an interview being taking place between employer and employee. In that situation, and where it is not an investigatory a fact-finding talk of interview. In other words, an interview first amend contracted further to a particular kind of interview one that was not investigatory or fact finding but one which had to do with the imposing of discipline -- a decision by an employer to an employee passing judgment upon his case of a problem and that very limited area and those circumstances, an employee had a right to have a representative present to him in those particular times. Now, whether this is a dichotomy that is based upon any real rational reason or not, is something that's debatable. But nevertheless, that is the way the law developed for some 25 years up until quality came along.
Potter Stewart: As long as you concede entitle to have somebody with his own choosing in under what condition?
John E. Jenkins, Jr.: Under when the investigation or the purpose of the conference was to pass judgment on him when it was disciplinary in nature what he was being brought in to say you are suspended for two days. You are no receiving a verbal warning, you are being discharged --
Potter Stewart: As contrasted with an investigative (Voice Overlap)?
John E. Jenkins, Jr.: Yes, Your Honor. Now, the reason why it should logically have developed in the law this way, I think is understandable.
Thurgood Marshall: Well, what was this interview for?
John E. Jenkins, Jr.: We don't know Your Honor. There is no way here that we can --
Thurgood Marshall: What is this interview to find out why you say it's not -- wasn't that raise before?
John E. Jenkins, Jr.: This is what Mrs. -- let me say this Your Honor first and the reason I say, we don't know for sure. First of all, the employee involved here did not testified to hearing. She was -- I understand quite ill at that time as see --
Speaker: (Inaudible)
John E. Jenkins, Jr.: Pardon, sir.
Speaker: (Inaudible)
John E. Jenkins, Jr.: Yes Your Honor. So, we don't know what she thought about the situation. Secondly, we don't know for sure what happened in the incident up on the floor. The only thing that we do know is that light of Mrs. Gerlach through her opponent is that she was concerned about the sassing incident. That's the only evidence that we have.
Thurgood Marshall: That's all we have.
John E. Jenkins, Jr.: We have evidence --
Thurgood Marshall: Well, what was the interview about other than that?
John E. Jenkins, Jr.: Well, it's certainly we can speculate that it could've been because work was disrupted. There was comment in the evidence about that up there. The employee had stopped and several other machine operator --
Thurgood Marshall: Would that lead to discipline?
John E. Jenkins, Jr.: It could I would say.
Thurgood Marshall: Well, why didn't that come into your category we're just talking about?
John E. Jenkins, Jr.: Because there had been no decision on the part of the company, at that time, to impose discipline. We don't know what the result what have been. How do we know if Mr. Gerlach --
Thurgood Marshall: Is she coming and said, “Yes, let's say it's done and I did it for the purpose to wrecking the business.” And she would talk to some right other job, wouldn't she?
John E. Jenkins, Jr.: The history of --
Thurgood Marshall: Wouldn't she?
John E. Jenkins, Jr.: We don't know because I think the history is interesting here. She had been an employee of this company for many, many years and the evidence undisputed was that she had gone on her own. Sometimes three or four times a day for a conference with Mr. Gerlach, the president. Evidently, there was quite a rapport or at least a facility of communication between the two, one on one in his office. And I don't know what Mr. Gerlach if he had the decision I think it would've been what he would've done in this situation. He may have this in plunder. He may have said, “Get on back to work” and not discipline her. We don't know because there is no evidence here as to what he would've done. We were not at that stage in this case. We were in the stage where she was being given the right to come before him and give him her side of the story.
Thurgood Marshall: She's given the right, she was ordered.
John E. Jenkins, Jr.: Yes she was ordered, she was both ordered --
Thurgood Marshall: Is that what you call gives us about the right to do something?
John E. Jenkins, Jr.: It is a combination of both. If I were in Mr. Gerlach --
Thurgood Marshall: And if she was fired for not doing it. So, that didn't give me by a right of fired.
John E. Jenkins, Jr.: Well, she was fired not for what she said to him but the fact that she were not discussing with him at all without a representative present which gets to her legal right in this case is to whether she was legally right or not.
Byron R. White: Mr. Jenkins, getting back to your -- the dichotomy I think you suggested between a stage of investigation and the stage which discipline is possible. For example, suppose of theft in the plan and the employer decides he wants to talk to everybody and calls them up one by one --
John E. Jenkins, Jr.: Yes.
Byron R. White: -- I gather that for you would be the investigation stage and one would not be entitle have the fellow employee with him.
John E. Jenkins, Jr.: That I understand is the position of the Board and the courts at present.
Byron R. White: Well, where is the line, where is the cross the line so that the employee is entitled to have some assistance?
John E. Jenkins, Jr.: It's a very fussy line, Your Honor and it has been spelled out on a case per case basis only with general terminology and the terminology is that where the -- in procedure is at the point where the decision by the company has been as to what it's going to do. In other words, it's ultimate disposition of the theft problem or whatever. At the point, if he calls the employee in, the employee has a statutory Section 7 right or under some other section, it is not clear to have a representative present but up until that point, they do not. And the reason in the rational for that I think is clear. Management in managing of this is needs a free flow of information. We hope that we do not get into the relevant of our Labor law to a situation where an employer and an employee cannot talk directly to each other on some matters. And I guess the problem here is to decide whether or not there are some and which there is an absolute right to representation and there's others when they're not. Certainly, if we're in a situation where an employer says, “How's the weather outside today?” And the employee says, “I'm not going to answer until I get my union representation.” Everybody would agree that would be in absurdity. And then we move from there on closer to the involvement of the employee --
Thurgood Marshall: Do they have the right to fire her?
John E. Jenkins, Jr.: Pardon?
Thurgood Marshall: Do you say, “How's the weather outside?” And she said, “None of your business.” You wouldn't have the right to fire her would you?
John E. Jenkins, Jr.: I would think not Your Honor. And the --
Warren E. Burger: Do you see any analogy even remote Mr. Jenkins between the Argersinger case which is in and totally different field in the criminal flied where this Court held that if a penalty of confinement is to be imposed there must be a lawyer. Now, that does not mean that the case of trial is invalid if it is held without a lawyer but what it does mean is that if the judge elects to go ahead without a counsel, without appointing counsel where there is the potential for confinement. He may not make the judgment a valid judgment of confinement at the end of that proceeding, is there any analogy that you see here at all?
John E. Jenkins, Jr.: I don't think that I see the apparent analogy Your Honor. But I do not think that it will work in the industrial relations error because here, you would have to -- in the industrial relation situation you would have to presuppose what the probable end-result of the investigation procedure was --
Warren E. Burger: That's what the judge has to do under Argersinger?
John E. Jenkins, Jr.: Maybe in a criminal situation but in the criminal situation you reach a conclusion before the court and in a labor situation you don't. There are as if for instance an employee gives information to the company and the company then determines at a later time to discharge the employee. The employee if he has the union representation get arbitrate the reasonableness of that. There's step beyond the court available to him but here in industrial life and I'm not sure that while a job rights are quite important. I'm not sure they're also equated with the person's civil rights and liberties as they would be in the case that Your Honors suggest. The courts have generally rejected the analogy between the Escobedo type of doctrines which have attempted in some instances to be applied to the industrial fields. They are simply talking about rights of different significance and order and do not feel their proper analogies.
Lewis F. Powell, Jr.: Do I understand Mr. Jenkins that your submission would be take this theft case again. When the employer after an interview with no representative or assistant present concludes that this is the thief, he may then without committing on unfairly with practice in that situation discharged the employee then in there and leave the employee to the remedy of a grievance and if the collective bargaining agreement calls for an arbitration, is that it?
John E. Jenkins, Jr.: That's right and then the question of just cause which is the most universal standard --
Lewis F. Powell, Jr.: Then I take it you would contest that would you to a situation where he begins the employer does whether a suspicion that's more than suspicion that this is the thief. And in that circumstance it would be an unfair labor practice if the employee insisted on having assistance of another fellow employee and he refuse to allow the assistance.
John E. Jenkins, Jr.: The distinction of the Court as I understand --
Lewis F. Powell, Jr.: Well, may I ask you what would you do in a situation where he started out with the suspicion that this was the -- and the employee wanted someone with him at the interview?
John E. Jenkins, Jr.: I do not believe that the distinction in the state of the mind of the employer should be controlling in any event. I don't think this dichotomy that the Labor Board has developed between when you're in the investigatory face and when you're in the decision or disciplinary face is a real one. This is a practitioner speaking who has to make practical applications at the lowest level at the plant. And we are looking as such as for clear cut rules and we don't like the rules of law to be the base upon the subjective state of mind of the employer. Let me draw an analogy if I can. I was interested in the discussion this morning on Gissel. Gissel --
Lewis F. Powell, Jr.: Sure you argued it?
John E. Jenkins, Jr.: Gissel was my client and I was here on that and I recall how astounded we were when the Gissel case was argued that the brief of the Board for the first time in this Court on the question of the good faith, there were doubt took a totally different view in their brief here than they had ever before and they backed off of that good faith doubt because simply it doesn't work in practice. And our problem with quality here is exactly the same. We see the Board in quality moving into the same legal psychological realm with respect to Section 7 right here as they did under the good faith doubt. In Gissel with a prior to that they were psychoanalyzing the employer to find out if he between his years had a good faith doubt. Here, even worst than that we are psychoanalyzing the employee and we are making the employer unfair labor practice depend upon an assessment of the psychological or beliefs of the employee. Because the exception that the Board would carve out here in quality as I understand it. It says this, “That even if the interview was investigatory and it is not disciplinary even at that stage we're going to widen the circle a little further and whether the conditions of that.” We're going to widen the circle an inch further to cover the situation where the employee between his years thinks that there may be reasonable probability of discipline at the end of the line.
Potter Stewart: Well, I gather that Mr. Jenkins your submission is that they can never be an unfair labor practice and the refusal to permit when the employer wants an interview with an employee and the employee to have union aids (Inaudible) with? I mean, is that --
John E. Jenkins, Jr.: The answer Your Honor, the answer is yes.
Potter Stewart: Then no circumstances under which unless the collective bargaining agreement provides?
John E. Jenkins, Jr.: Yes, Your Honor it follows -- and I think this follows from the plain reading of Section 7 because it doesn't provide for it in there. And but -- let me just case to add that that is not the position that the Labor Board has taken. They have taken there are some instances namely when discipline is involve and the courts have upheld them with respect to that right. But I think the problem here in this decision to those of us who are practitioners is that we have a situation where the scope of the employee's rights have been spelled out in case after case over this period of time.
Byron R. White: Are you satisfied with the -- would you be satisfied with the rule that the employee may have disciplinary or may have a help within if it's disciplinary?
John E. Jenkins, Jr.: Oh! I would not Your Honor.
Byron R. White: And --
John E. Jenkins, Jr.: I don't feel that Section provides for that and I think that --
Byron R. White: But that would turn on what the employer anticipate in doing?
John E. Jenkins, Jr.: Yes, Your Honor and it would put us in the position of trying to decide. Well, what the end-result and suppose that Your Honors where the employer most of these investigations start out when the purpose of the investigation is to find out what the end will be. And yet --
Byron R. White: But that was the rule for a long time, wasn't it?
John E. Jenkins, Jr.: Pardon sir?
Byron R. White: Wasn't that the rule for quite a while if discipline is involved, you're entitled to representation?
John E. Jenkins, Jr.: Yes, Your Honor that's the rule now with the Board and the courts as I understand it.
Potter Stewart: Never in this Court?
John E. Jenkins, Jr.: Pardon, sir?
Potter Stewart: Never of any decision of this Court (Voice Overlap)?
John E. Jenkins, Jr.: That is why we're here Your Honor. I don't think it --
Potter Stewart: I do not what I thought and I want to be clear that I understand that you're not arguing upholding this distinction that the Board has made, are you?
John E. Jenkins, Jr.: No Your Honor, I'm not. I think it's a distinction (Voice Overlap) --
Potter Stewart: It's not in the absence of a collective bargaining agreement providing otherwise is absolutely no right of representation if an employee for an interview with the employer --
John E. Jenkins, Jr.: Yes, Your Honor.
Potter Stewart: -- if the right attaches only under a different provision of the Act if that is when there's a grievance?
John E. Jenkins, Jr.: Yes, Your Honor.
Potter Stewart: Is that it?
John E. Jenkins, Jr.: That is correct because and I think that we may suppose also that this is a view that Congress make take out but at least to so far as the extension proposed in this Act.
Potter Stewart: On grievance, I mean if there's or when there has been some sort of disciplinary action?
John E. Jenkins, Jr.: Yes, Your Honor.
Potter Stewart: Afterwards then?
John E. Jenkins, Jr.: That's correct.
Byron R. White: The Board is not part on that let's say when a discipline is involved or not even though it's investigatory he's entitled to representation.
John E. Jenkins, Jr.: Yes, Your Honor. They have gone the extra inch or further than that now to raise that and I suppose we might presuppose that the next step would be you can have represent a person anytime.
Byron R. White: The Court of Appeals didn't go as far as you're suggesting, did it?
John E. Jenkins, Jr.: No, Your Honor, they didn't.
Byron R. White: Well, of course they denied enforcement of the Board's order or did they, yes?
John E. Jenkins, Jr.: They denied --
Byron R. White: So I gather you think that denial is something you can support without cross-petition?
John E. Jenkins, Jr.: Yes Your Honor I do because I think that for the purposes of disposition of this case, the position that the Court of Appeals took a sufficient but I think that the Court of Appeals still would allow a certain area of representation that I feel is not spelled out clearly in this Act here. So, you find a -- it's a question of course of where you're going to draw the line and how wide and under what circumstances you're going to say that the law requires that an employer permit an employee to have a representative present with him.
Warren E. Burger: Do you regard the Fourth Circuit's utterances on this other area as dictum in the case?
John E. Jenkins, Jr.: I think so Your Honor because I don't think they were necessary to dispose of this case. Yes, Your Honor.
Speaker: (Inaudible)
John E. Jenkins, Jr.: Yes I am. Should the -- the grammar is not accurate of course Your Honor that is referring to the Circuit -- Seventh Circuit.
Speaker: (Inaudible)
John E. Jenkins, Jr.: Part of it, yes Your Honor. In closing, I'd like to make a comment that it would seem that the exception or the provision for representation which the petition here is arguing for which Labor Board requires namely representation where the employee has reasonable cost to believe that disciplinary action may result sets up a criteria of the existence or nonexistent of an unfair labor practice by an employer upon the fears of an employer -- of employee. If the employee fears that he may be disciplined no matter how slight then under the Board rule he's entitled to representation. But it is the employer who must make a decision without the facts as to whether or not this fear is reasonable or whether or not this fear is justified. And I do not think the flowing of statutory rights of representation should be present or nonexistent depending upon whether an employee fears a certain result or whether he is completely without fear on the subject.
Byron R. White: What I gather Mr. Jenkins essentially, your submission is that concerted Section 7 -- this is not a concerted activity within Section 7?
John E. Jenkins, Jr.: That is correct Your Honor exactly. Thank you.
Warren E. Burger: Mr. Dunau, I think your time is expired. Thank you gentlemen. The case is submitted.