DuPont de Nemours, E. I., and Company, Incorporated

National Labor Relations Board - Board Decisions

Jul 20, 1982

262 N.L.R.B. 1040 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. I. DuPont de Nemours and Company, Incorporat-
ed and Henry M. Burke. Case 32-CA-1737
July 20, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On May 19, 1980, Administrative Law Judge
William J. Pannier III issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, E. 1. DuPont
de Nemours and Company, Incorporated, Antioch,
California, its officers, agents, successors, and as-
signs, shall take the action set forth in the said rec-
ommended Order.
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
' See Materials Research Corporation, 262 NLRB 1010 (1982), issued
this day.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge:
This matter was heard by me in Oakland, California, on
January 14, 1980. On September 7, 1979, the Acting Re-
gional Director for Region 32 of the National Labor Re-
lations Board issued a complaint and notice of hearing,
based on an unfair labor practice charge filed on April
23, 1979, alleging violations of Section 8(a)(1) of the Na-
tional Labor Relations Act, as amended, 29 U.S.C. § 151,
et seq., herein called the Act. All parties have been af-
forded full opportunity to appear, to introduce evidence,
to examine and cross-examine witnesses, and to file
briefs. Based on the entire record, on the briefs filed on
behalf of the parties, and on my observation of the de-
meanor of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
At all times material, E. I. DuPont de Nemours and
Company, Incorporated, herein called Respondent, has
been a corporation duly organized under and existing by
virtue of the laws of the State of Delaware, with an
office and principal place of business located in Wilming-
ton, Delaware, and a manufacturing facility located in
Antioch, California, where it is engaged in the manufac-
ture of chemicals. During the 12-month period prior to
issuance of the complaint, Respondent, in the course and
conduct of its business operations, sold and shipped
goods or services valued in excess of $50,000 directly to
customers located outside the State of California, and,
additionally, purchased and received goods or services
valued in excess of $50,000 directly from suppliers locat-
ed outside the State of California. Therefore, I find, as
admitted in the answer to complaint, that at all times ma-
terial, Respondent has been an employer engaged in
commerce and in a business affecting commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issue
This case presents a question as to whether the doc-
trine enunciated in N.LR.B. v. J. Weingarten, Inc., 420
U.S. 251 (1975), applies to a situation where an unrepre-
sented employee requests the presence of a witness
during an interview where the employer demands that
he agree, in writing, to abide by the terms of a proba-
tionary employment program, imposed because of past
deficiencies perceived by the employer in that employ-
ee's performance. I find that the Weingarten doctrine is
applicable in such circumstances. I further find that by
discharging the employee for refusing to sign such an
agreement, after having denied his request for representa-
tion and after having insisted, nonetheless, that the em-
ployee continue the interview and sign the agreement,
the Employer violated Section 8(a)(l) of the Act.
B. Facts
Henry M. Burke commenced working for Respondent
on November 15, 1968, occupying the position of mainte-
nance mechanic for the last 9 or 10 years before his ter-
mination on November 1, 1978.1 During the last few
months of his employment, Burke's relations with Re-
spondent had been somewhat less than placid. Thus, as a
result of an industrial accident on September 8, Burke
had engaged in a running dispute with local management
over the severity of his injuries, the propriety of the in-
vestigation being conducted, the assessment of responsi-
bility for the accident determined by the investigation,
and the amount of time that he had spent obtaining medi-
cal treatment for his injuries. Burke had filed a grievance
Unless otherwise stated, all dates occurred in 1978.
262 NLRB No. 126
1040
E. 1. DUPONT DE NEMOURS AND COMPANY
pursuant to Respondent's in-house grievance procedure
concerning these matters.2 Earlier, he had filed a griev-
ance concerning the assignments which he had received.
On October 30, Burke was suspended for refusing to
sign a timecard which showed him as being docked for
time which he had taken to obtain medical treatment. On
the following day, he was directed to report to the office
at I p.m. on November i. When he did so, his immediate
supervisor, William Reynolds,3 read an interview record
which listed the deficiencies, in Respondent's view, in
Burke's performance during the preceding 19-month
period. Such matters as his absences due to disabilities,
his refusal to comply with OSHA regulations, and his
grievances and "incessant chatter" while he was sup-
posed to be working were among the items listed.
Having finished reading the record to Burke, Reynolds
directed him to sign the document, acknowledging that
he had been informed of its contents. Consistent with his
past practice, Burke declined to do so. Reynolds then
summoned his immediate superior, Joseph McKee,4 to
serve as a witness to Burke's refusal to sign the record.
So far as the record discloses, never in the past had Re-
sponder!! sought a witness to Burke's refusal to sign an
interview record. After McKee had arrived, Burke also
requested a witness, but this request was disregarded.5
When Burke continued to decline to sign the record,
McKee directed Reynolds to sign it and to note that
Burke had refused to do so.
McKee then produced a typed development program
for Henry M. Burke. As is stated in Respondent's brief,
this program provided, in essence, that Burke
. . . would perform his work diligently, that he
would not engage in excessive discussion of person-
al problems and outside activities during work time,
that he would follow specified procedures for
making medical appointments, that he would en-
deavor to have disability performance equal to the
department average, that he would assume personal
responsibility for compliance with safety rules and
regulations, that he would adopt a cooperative atti-
tude toward management with respect to the job
and the correction of medical problems, and that his
performance would be under daily scrutiny with
monthly written reviews.
The final sentence of the program states: "I fully accept
and agree to the development program outlined above."
After saying that this was a list of terms which Burke
would have to observe if he wanted to continue working
for Respondent, McKee began reading from the docu-
ment. As McKee read, Burke interposed objections to
2 There is no recognized collective-bargaining representative at the fa-
cility where Burke had been working.
3 At all times material, Reynolds had been a supervisor within the
meaning of Scc. 2 t1) of the Act and an agent of Respondent.
4 At all times material, McKee had been a supervisor within the mean-
ing of Sec 2(1 I1 of the Act and an agent of Respondent.
' In a pietrial affidavit. Burke made no specific mention of having re-
quested it witness at this point during the interview. Rather, the affidavit
recites only a later request, made when McKee had begun reading the
developmen! program Nevertheless. when testifying, Burke continued to
maintain that hr h d made this earlier request and Respondent produced
no cvidenc' to crontrovert Burke's assertion in this regard.
the conditions. When McKee insisted that Burke listen to
what was being. read, Burke then asked for copies of
both the interview record and of the development pro-
gram, explaining that "I'd already been to the Labor
Commissioner's Office and they told me to substantiate
whatever I could as far as documents .... " However,
Burke was reminded of Respondent's policy of not re-
leasing documents. Burke then said, "If you won't give
me the documents I would like a witness in here."6 This
request was also refused, even though Burke stated spe-
cifically that "All I would like is just anybody out there
to be a witness who is not of supervision or on salary."
When McKee had finished reading the program, Burke
was instructed to sign it. Burke refused to do so unless
he was accorded a copy or, if not that, a witness. 7 How-
ever, his requests were refused and when he continued to
refuse to sign, he was terminated.
C. Analysis
The General Counsel argues that the foregoing facts
show that Burke had a right to invoke the Weingarten
doctrine during the November I meeting with McKee
and Reynolds, and, further, that their insistence that
Burke continue the meeting and execute the development
program after having denied Burke's request violates
Section 8(a)(1) of the Act. Inasmuch as his termination
had resulted from his failure to execute the program in
the face of Respondent's denial of his request for a wit-
ness, argues the General Counsel, the termination must
also be found to have violated Section 8(a)(1) of the Act.
Conversely, Respondent argues that the Weingarten doc-
trine is inapplicable in the circumstances of this case be-
cause the nature of the meeting was such that, without
regard to the presence or absence of a statutory bargain-
ing representative, an employee in Burke's situation
would not have been entitled to representation. Respond-
ent further contends that, even had Burke been entitled
to invoke the Weingarten doctrine, his request, merely
for a witness, falls short of the type of request that must
be made by an employee to invoke the doctrine. Finally,
even if an employee in Burke's situation had been enti-
tled to request representation and even had a request for
a witness been sufficient under the Weingarten doctrine,
Respondent argues that the doctrine is limited to situa-
tions where there is a statutory bargaining representative,
within the meaning of Section 9(a) of the Act, and is in-
applicable to facilities and employees where no such rep-
6 Asked why he had requested a witness at this point, Burke testified:
First of all, I would have been happy just to have a document as
the Labor Commission's Office told me to get anything I could have
in writing. When I was refused a document, then the next best thing
I could have, and they told me I'd have to agree to this document or
my job, these were conditions to my job at this time, that when I
was refused a document, the next best thing I could have would be a
witness to the fact that I was refused this document.
' As Burke explained it:
With a witness in the room under-when they tricked me with
termination, O.K., as the last straw I would have signed it with a
witness in the room Then I would have had something to substanti-
ate that I did this without [sicJ being under duress. Then I could
have told the Labor Commission's Office what had happened with
something to back me.
1041
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resentative is present. For the following reasons, I dis-
agree with Respondent's arguments.
The parties stipulated that "upon being notified of the
November 1, 1978 meeting with supervisors McKee and
Reynolds, Burke had a reasonable expectation that that
meeting would result in disciplinary action." The Su-
preme Court has sustained as being proper "[t]he Board's
construction that creates a statutory right in an employee
to refuse to submit without union representation to an in-
terview which he reasonably fears may result in his disci-
pline .... " Weingarten, supra at 256. Accordingly, in
view of the existence of a reasonable expectancy of disci-
pline in this case, as a general proposition, the General
Counsel is correct in asserting that the basis for applica-
tion of the Weingarten doctrine is present in the instant
case.
However, the doctrine does not apply to all meetings,
without limitation, between employers and employees.
As it has evolved, the doctrine is limited or bounded by
two types of meetings. The first such limitation is where
the employer seeks only to engage in "run-of-the-mill,
shop-floor conversations as, for example, the giving of
instructions or training or needed corrections of work
techniques." Quality Manufacturing Company, 195 NLRB
197, 199 (1972). There is no contention by Respondent
that this limitation is applicable to the substance of the
November I meeting. Nor could there be, inasmuch as
Burke had been summoned to the office, from a disci-
plinary suspension, to listen to Respondent's final deter-
mination concerning the circumstances that had led to
that suspension. Moreover, Burke's work had not been
evaluated for the prior 19 months and the development
program had been one especially created for Burke, set-
ting forth employment conditions that other employees
were not obliged to observe. Consequently, the meeting
can be characterized neither as being "run-of-the-mill"
nor as a "shop-floor" conversation.
The second type of meeting that serves as a limitation
of the Weingarten doctrine is one "held solely for the
purpose of informing the employee of, and acting upon,
a previously made disciplinary decision." Baton Rouge
Water Works Company, 246 NLRB 995 (1979). Respond-
ent argues that the November I meeting was of this type.
Of course, it was convened for disciplinary purposes.
However, such a characterization or description of the
meeting is not dispositive of the applicability of the
Weingarten doctrine, for "the full purview of protections
accorded employees under Weingarten apply to both 'in-
vestigatory' and 'disciplinary' interviews, save only those
conducted for the exclusive purpose of notifying an em-
ployee of previously determined disciplinary action."
Baton Rouge Water Works, supra. Thus, characterizations
or descriptions of the type of meeting being conducted
do not serve as the correct test for determining the appli-
cability of the Weingarten doctrine. Rather, the correct
test for making that determination is whether the em-
ployers limit the scope of the meetings to informing em-
ployees of disciplinary decisions and to ensuring that em-
ployees understand "the reasons for disciplinary action,
their concurrence therewith aside." Texaco, Inc., 246
NLRB 1021 (1979). "[I]f the employer engages in any
conduct beyond merely informing the employee of a pre-
viously made disciplinary decision, the full panoply of
protections accorded the employee under Weingarten
may be applicable." Baton Rouge Water Works, supra.
Here, had Respondent done no more than read the in-
terview record and development program to Burke and
demand that he comply with the terms of the latter, it
might well be that the meeting would properly be cate-
gorized as one conducted for no more than disciplinary
notification. But, Respondent did do more. It insisted ini-
tially that Burke sign the interview record. When, con-
sistent with his own past practice, Burke declined to do
so, Reynolds took the unprecedented, so far as the
record discloses, step of summoning McKee to witness
that fact. Then, when Burke still would not sign the
record, McKee produced a development program, espe-
cially tailored for Burke, to govern the terms of his
future employment with Respondent. In its brief, Re-
spondent claims that the conditions imposed in the pro-
gram had been predetermined. That seems clear from the
fact that it was produced in typewritten form during the
meeting with Burke. Yet, Respondent has produced no
evidence that would show that it had made a-. unalter-
able decision to actually produce the development pro-
gram no matter what Bruke did with respect to the re-
quest that he sign the interview record. To the contrary,
McKee, who had been the official to produce and read
the terms of the development program to Burke, had not
attended the first part of the meeting, during which
Reynolds had reviewed the interview record with Burke.
Only when the latter had refused to sign the record did
McKee appear on the scene as a "witness." And only
when Burke persisted in declining to sign the record did
McKee then take over the meeting and produce the de-
velopment program. Consequently, in the absence of any
evidence to the contrary, there is a firm basis for infer-
ring that the decision to actually utilize the typed devel-
opment program had not been unalterably predeter-
mined, but rather had been contingent upon Burke's re-
action when requested to sign the interview record.
Furthermore, as had been the fact regarding the inter-
view record, McKee did not simply read the develop-
ment program to Burke and inform him that he would be
subject to its terms. Instead, he insisted, on pain of dis-
charge for not doing so, that Burke sign the program,
thereby specifically accepting and agreeing to its terms.
Yet, the signing of such an acceptance and agreement by
an employee plays no role in the announcement of disci-
plinary action. Nor, at least in the circumstances present
here, does it serve to aid in promoting understanding by
an employee of the nature and reasons for the discipline
being imposed. Rather, by acknowledging that he had
accepted and agreed to the terms of the program, as sig-
nified by his signature on it, Burke potentially was being
placed in a position where Respondent could later assert
that his signature on the program served to indicate his
admission that his past conduct, as described in the inter-
view record, had been deficient and, further, indicated
agreement to the propriety of the conditions imposed by
the program. In short, by signing the development pro-
gram, Burke would be running the risk of undermining
any objection to imposition of its terms that he might
1042
E. 1. DUPONT DE NEMOURS AND COMPANY
later raise in proceedings to contest their propriety, such
as in the course of processing an in-house grievance or
before the labor commissioner.
The signing of statements during a meeting with man-
agement is among the examples advanced by the Board
as constituting conduct that goes beyond that which is
necessary for notification and explanation of discipline.
Baton Rouge Water Works, supra. True, in that case, the
Board spoke of somewhat different types of statements
than the interview record and development progam pre-
sented to Burke on November 1. Nevertheless, in Baton
Rouge, the Board was merely providing illustrations of
the types of statements that would exceed the scope of
the disciplinary notification and explanation limitation to
the Weingarten doctrine. There was no indication that it
intended those illustrations to be all inclusive. One of the
policies underlying the Weingarten doctrine is the protec-
tion of employees' positions in future proceedings per-
taining to the propriety of discipline imposed. True, in so
saying, both the Board and the Supreme Court had been
contemplating grievance and arbitration proceedings cre-
ated by collective-bargaining agreements. Yet, here, Re-
spondent did have an in-house grievance procedure cre-
ated to serve the same function-resolving disputes be-
tween Respondent and its unrepresented employees.
Moreover, proceedings before the labor commissioner
are part of the employment legislation created to regu-
late labor disputes. "The Board must recognize the pur-
poses and policies of other employment legislation, and
construe the Act in a manner supportive of the overall
statutory scheme." Alleluia Cushion Co., Inc., 221 NLRB
999, 1000 (1975). Consequently, the potential effect of
Burke's signature on the development program in pro-
ceedings before the labor commissioner, as well as in
proceedings initiated under Respondent's in-house griev-
ance procedure, is as significant to his Section 7 rights as
it would be in assessing an employer's position in a
grievance procedure arising from a collective-bargaining
agreement. That is, the concern remains the same not-
withstanding the difference in forum.
In sum, Weingarten and its progeny articulate a Sec-
tion 7 right applicable to all meetings between employers
and employees whenever the latter have a reasonable ex-
pectancy that disciplinary action may result. Burke had
such an expectancy. While meetings to inform an em-
ployee of disciplinary action fall outside the ambit of the
Weingarten doctrine, such meetings, as is true of any lim-
itation or exception to statutory rights, must be strictly
limited to the purpose for which the limitation or excep-
tion exists: that is, to notifying and explaining the disci-
pline being imposed. Where, during a meeting with man-
agement, an employee is obliged to take action that may,
as in the case of Respondent's insistence that Burke sign
the interview record, result in further disciplinary action,
such as imposition of the conditions of the development
program when Burke declined to sign the interview
record, and that may undermine that employee's position
in subsequent proceedings to determine the propriety of
discipline imposed, such as the effect of signing an agree-
ment to the terms imposed by the development program
might have on Burke's position in an in-house grievance
proceeding or before the labor commissioner, that meet-
ing ceases to be confined to simply notification and ex-
planation of discipline. Rather, it becomes a meeting
which the inequality of bargaining power between em-
ployees and employers entitles "a lone employee" to pro-
tection from being required to attend without representa-
tion. Weingarten, supra at 262.
This then leads to consideration of Respondent's next
contention: that Burke's request for a "witness" fails to
satisfy the Weingarten requirement that "the right arises
only in situations where the employee requests represen-
tation." Weingarten, supra at 257. The credible evidence
produced at the hearing shows that Burke made requests
for a witness at two points during the November I meet-
ing. The first occurred at the time that McKee had en-
tered the room, having been summoned to "witness"
Burke's refusal to sign the interview record. Burke's con-
tinued refusal to sign had then led to production of the
development program. The second request occurred
during the course of the reading of the development pro-
gram.8 Burke admitted that he had not sought a witness
for the purpose of obtaining advice. Rather, he testified
that he had sought a witness for substantiation of the
terms of the interview record and development record,
having been previously instructed by the labor commis-
sioner to obtain copies of documents of this type, and,
further, for the fact that any signature which he placed
on the development record had not been the product of
voluntary agreement to its terms. Based, essentially, on
Burke's use of the term "witness" and upon the individ-
ually oriented and limited reasons for which he had
made the requests, Respondent argues that Burke's re-
quests simply did not rise to the level of the type of re-
quest for "representation" necessary to invoke the Wein-
garten doctrine. I do not agree.
"The employer has no duty to bargain with the union
representative at an investigatory interview." Weingarten,
supra at 260. Consequently, it is obvious that the "repre-
sentation" contemplated by the Weingarten doctrine is
less than that accorded a statutory bargaining representa-
tive under Section 9 of the Act. Both the Supreme Court
in Weingarten and the Board in subsequent cases have ad-
vanced examples of the role that could be played by that
"representative." "Indeed, the union representative's role
is limited to assisting the employee and possibly attempt-
ing to clarify the facts or suggest other employees who
may have knowledge of them." Anchortank, Inc., 239
NLRB 430 (1978). Yet, these examples of the function
that a representative could play are merely illustrations.
At no point has either the Board or the Supreme Court
precluded the "representative" from serving as a witness
s Respondent argues that because Burke failed to make his request at
the very commencement of McKee's reading of the development pro-
gram, after McKee had specifically put Burke on notice that a "strong
commitment" from Burke was being sought in order for Burke to be al-
lowed to continue employment with Respondent, that Burke had some-
how waived any Weingarten right that he might otherwise have possesed,
and that Respondent was not thereafter obliged to interrupt the reading
of the development program to secure a witness for Burke. There is no
merit to that argument. The standard for waiver of a statutory right,
"clear and unmistakable," The Timken Roller Bearing Company v.
N.L.R.B., 325 F.2d 746, 751 (6th Cir. 1963), cert. denied 376 U.S. 971,
can hardly have been said to have been met by, in essence, Burke's initial
silence when first advised of the existence of the development program.
1043
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during the meeting with the employer. To the contrary,
in his dissenting opinion, with which Justice Stewart
joined, Justice Powell specifically referred to such a role
as being one which the Weingarten "representative"
might perform: "The new right thus appears restricted to
the privilege to insist on the mute and inactive presence
of a fellow employee or a union representative: a witness
to the interview, perhaps." Weingarten, supra at 273, fn.
5. Similarly, the Board has agreed with the proposition
that "no particular title need be held by the representa-
tive; he may be no more than a witness, in a proper
case." Crown Zellerbach Inc., Flexible Packaging Division,
239 NLRB 1124 (1978).
True, as pointed out above, the representative can
serve functions other than merely that of a witness,
under the Weingarten doctrine, during the meeting with
management. Yet, neither the Supreme Court nor the
Board has ever held that the representative must do so.
If the employee that is the target of potential discipline
or, for that matter, if the representative, himself, decides
to confine his role to no more than witnessing what is
occurring, that should not deprive the employee of the
Section 7 right to which he is otherwise entitled under
Weingarten. Indeed, where, as is the fact here, the em-
ployee's concern is with the effect that his act of signing
a document may have in subsequent proceedings, con-
testing the propriety of the discipline imposed in that
document, the function of witnessing may be the most
crucial one that the Weingarten representative can serve.
For example, should it later be argued that no challenge
could be made to the propriety of the development pro-
gram's terms because Burke had agreed to abide by
them, the presence of a witness would serve to fortify
Burke's position that his signature did not mean that he
had agreed voluntarily to have his employment governed
by these terms, but rather that he had signed solely to
avoid being discharged for not doing so.
In sum, an employee should not be deprived of a right,
under the Weingarten doctrine, to which he would other-
wise be entitled, simply because he chooses not to have
the "representative" exercise the full range of functions
which that representative could exercise under the Wein-
garten doctrine. Moreover, the fact that Burke requested
a witness, rather than a representative, during the meet-
ing should not serve to deprive him of his right to a
Weingarten representative. He specifically made clear
that his concern had been with potential proceedings
before the labor commissioner. Both McKee and Reyn-
olds were aware of Burke's willingness to use the in-
house grievance procedure; a past grievance was among
the complaints enumerated in the interview record.
Clearly, they understood the purpose of his request. Yet,
they rejected it. In these circumstances, Burke should
not be penalized simply because he "had to speak for
[himself] as best [he] could." N.LR.B. v. Washington
Aluminum Co., 370 U.S. 9, 14 (1962). Therefore, I find
that Burke's request for a witness did suffice to constitute
a request for representation within the meaning of Wein-
garten.
Having determined that the Weingarten doctrine was
applicable to the November I meeting and that Burke's
request for a witness sufficed to invoke his rights under
that doctrine, there remains for consideration the issue of
whether the Section 7 right enunciated in Weingarten ap-
plies in situations where there is no collective-bargaining
representative.9 Even a cursory reading of Quality Man-
ufacturing, supra, and Weingarten, supra, discloses that
"the right inheres in [Section] 7 's guarantee of the right
of employees to act in concert for mutual aid and protec-
tion." Weingarten, supra at 256. The right to engage in
concert for mutual aid and protection, of course, is not
dependent on the existence of a statutory bargaining rep-
resentative. Consequently, under basic statutory princi-
ples, neither would application of the Weingarten doc-
trine. Indeed, the Board has expressly so stated: "We
conclude that Section 7 rights are enjoyed by all em-
ployees and are in no wise dependent on union represen-
tation for their implementation." Glomac Plastics, Inc.,
234 NLRB 1309, 1311 (1978). So, too, did Justices
Powell and Stewart:
While the Court speaks only of the right to insist
on the presence of a union representative, it must be
assumed that the [Section] 7 right today recognized,
affording employees the right to act "in concert" in
employer interviews, also exists in the absence of a
recognized union. [Weingarten, supra at 269, fn. 1.]
To apply the Weingarten doctrine to unrepresented
employees, as well as to those who are represented, is
not irrational. As noted above, even a statutory repre-
sentative may not engage in bargaining during the course
of the interview. Accordingly, the full powers of a statu-
tory representative are not needed to fulfill the role con-
templated by the Court and the Board under the Wein-
garten doctrine. Further, many of the illustrations of
functions that a representative could perform in such a
meeting-such as advising the employee being inter-
viewed, eliciting favorable facts, and aiding in getting to
the problems of the incident-could just as readily be
performed in the absence of a statutory representative.
Indeed, in this case, a nonstatutory bargaining repre-
sentative could just as readily have performed the wit-
ness function that Burke felt he would need for later pro-
ceedings before the labor commissioner. Finally, the ab-
sence of a statutory bargaining representative does not
mean that requiring "a lone employee" to attend an in-
terview with his employer perpetuates the inequality of
his bargaining power, vis-a-vis his employer, any the less
than it would in the case of a represented employee. See
Weingarten, supra at 262. The same inequality exists in
both situations, just as Section 7 of the Act accords
rights both to represented and unrepresented employees.
Therefore, I find that the Weingarten doctrine applies to
employees who are not represented by a statutory bar-
gaining representative.
Respondent's brief also argues that there was no con-
certed activity involved in this case, because Burke had
sought only to vindicate his own self-interest and, so far
* To date, two administrative law judges have issued decisions address-
ing this issue. In Materials Research Corporation, JD-(NY)- I-80, it was
concluded that the doctrine did not apply to unrepresented employees.
Conversely, in Sears, Roebuck and Ca, JD-(SF)-120-80, Administrative
Law Judge Richard D. Taplitz concluded that it did.
1044
E. 1. DUPONT DE NEMOURS AND COMPANY
as the record discloses, had been unconcerned with the
rights of other employees employed by Respondent.
Such an argument misconceives the nature of Burke's sit-
uation. True, his immediate concern was with the cir-
cumstances confronting him and with their effect on his
future employment situation with Respondent. Yet, in
asking for another nonsupervisory, nonsalaried employee
to accompany him, he was seeking to act in concert with
another employee. There is no rule requiring that every
employee in the plant be involved for activity to be con-
certed. Moreover, while other employees might not have
been overly concerned with Burke's particular 'problem,
they all are susceptible to being called to meetings with
Respondent's officials at which they may seek a repre-
sentative under the Weingarten doctrine. Consequently,
while an employee summoned to serve as Burke's wit-
ness might not have a direct interest in the disposition of
Burke's case, by being present he assured "himself, in
case his turn ever [comes], of the support of the one that
[he was] then helping .... " N.L.R.B. v. Peter Cailler
Kohler Swiss Chocolates Company, Inc., 130 F.2d 503,
505-506 (2d Cir. 1942). He also would be assured of the
protection accorded by the Weingarten doctrine.
Finally, the parties stipulated that Burke had not been
terminated because of his request for representation.
However, he was terminated because he had refused to
participate in the interview in the manner demanded by
Respondent. That is, Burke refused to sign the develop-
ment record. Under Weingarten, once the employee re-
quests the presence of a representative and that request is
refused, the employer is obliged to discontinue the inter-
view or, alternatively, to offer the employee the choice
of continuing the interview without a representative or
having no interview at all. See, e.g., Roadway Express,
Inc., 246 NLRB 1127 (1979). Here, Respondent did nei-
ther. Instead, it insisted that Burke continue the inter-
view and sign the program, without the benefit of a wit-
ness. In so doing, Respondent violated Section 8(a)(1) of
the Act. When it then discharged Burke for refusing to
sign the development program, after having denied his
requests for a witness, it also violated Section 8(a)(1) of
the Act. For, had Respondent observed the obligations
imposed upon it by the Weingarten doctrine, it should
have, at least, offered Burke the opportunity to forego
further participation in the meeting and, in any event,
could not, without according him a witness, have insisted
on continuing the meeting by demanding that he sign the
development program.
Ill. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of E. 1. DuPont de Nemours and Com-
pany, Incorporated, set forth above, occurring in con-
nection with its operations described in section 1, above,
have a close, intimate, and substantial relationship to
trade, traffic, and commerce among the several States
and tend to lead, and have led, to labor disputes burden-
ing and obstructing commerce and the free flow of com-
merce.
CONCLUSIONS OF LAW
1. E. I. DuPont de Nemours and Company, Incorpo-
rated, is an employer within the meaning of Section 2(2)
of the Act, engaged in commerce and in a business af-
fecting commerce within the meaning of Section 2(6)
and (7) of the Act.
2. By requiring that an employee participate in an em-
ployer interview or meeting without representation,
when such representation had been refused and when the
employee had reasonable grounds to believe that the
matters to be discussed might result in his being the sub-
ject of disciplinary action, and by discharging that em-
ployee for refusing to participate in that interview or
meeting in the manner prescribed, by signing an agree-
ment to abide by special employment terms, following
denial of his request for representation, E. I. DuPont de
Nemours and Company, Incorporated, violated Section
8(aXl) of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
THE REMEDY
Having found that E. I. DuPont de Nemours and
Company, Incorporated, has engaged in certain unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and that it take certain affirm-
ative action to effectuate the policies of the Act.
E. I. DuPont de Nemours and Company, Incorporat-
ed, will be required to offer Henry M. Burke immediate
reinstatement to his former position of employment or, if
that position no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or other
rights and privileges, dismissing, if necessary, anyone
who may have been hired to perform the work that he
had been performing prior to November 1, 1978. Addi-
tionally, E. I. DuPont de Nemours and Company, Incor-
porated, will be required to make Burke whole for an)
loss of earnings he may have suffered by reason of his
unlawful termination, with backpay to be computed as
prescribed in F. W. Woolworth Company, 90 NLRB 289
(1950), and with interest to be paid on the amount owing
in the manner prescribed in Florida Steel Corporation, 231
NLRB 651 (1970); see, generally, Isis Plumbing & Heat-
ing Co., 138 NLRB 716 (1962), enforcement denied on
different grounds 322 F.2d 913 (9th Cir. 1963).
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 'O
The Respondent, E. I. DuPont de Nemours and Com-
pany, Incorporated, Antioch, California, its officers,
agents, successors, and assigns, shall:
io In the event no exceptions are filed as provided by Sec 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
1045
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Requiring that employees participate in employer
interviews or meetings without representation, when
such a request has been refused and when the employees
have reasonable grounds to believe that the matters to be
discussed may result in disciplinary action.
(b) Discharging or otherwise disciplining employees
who have been required to participate in employer inter-
views or meetings without representation, when such a
request has been refused and when the employees have
reasonable grounds to believe that the matters to be dis-
cussed may result in disciplinary action, because those
employees have refused to sign documents or take other
action during the meetings, as directed, following the
denial of their requests for representation.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action deemed neces-
sary to effectuate the policies of the Act:
(a) Offer Henry M. Burke immediate and full reinstate-
ment to his former position of employment, dismissing, if
necessary, anyone who may have been hired or assigned
to perform the work that he had been performing prior
to November 1, 1978, or, if his former position no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or other rights and privileges, and
make him whole for any loss of pay he may have suf-
fered as a result of the discrimination, in the manner set
forth above in the section entitled "The Remedy."
(b) Preserve and make available to the Board or its
agents all payroll and other records necessary to com-
pute the backpay and reinstatement rights set forth in
The Remedy section of this Decision.
(c) Post at its Antioch, California, facility copies of the
attached notice marked "Appendix." " Copies of said
notice, on forms provided by the Regional Director for
Region 32, after being duly signed by its authorized rep-
resentative, shall be posted by it immediately upon re-
ceipt thereof and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by E. 1. DuPont
de Nemours and Company, Incorporated, to ensure that
said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 32, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had an opportunity
to present evidence, the National Labor Relations Board
has found that we violated the National Labor Relations
Act and we have been ordered to post this notice.
The Act gives all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through representatives
of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activity except
to the extent that the employees' bargaining rep-
resentative and employer have a collective-bar-
gaining agreement which imposes a lawful re-
quirement that employees become union mem-
bers.
WE WILL NOT require you to further participate
in an interview or meeting with us without the pres-
ence of another employee, when you reasonably be-
lieve that the matters to be discussed in that inter-
view or meeting may result in disciplinary action
being taken against you, and where we have refused
your request for the presence of a representative,
witness, or another employee.
I In the event that this Order is enforced by a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall to read "Posted Pur-
suant to a Judgment of the United States Court of Appeals Enforcing an
Order of Ihe National Labor Relations Board,"
1046
E. 1. DUPONT DE NEMOURS AND COMPANY
WE WILL NOT, where you have been required to
participate in an interview or meeting with us with-
out the presence of a representative, witness, or an-
other employee and where we have refused your
request that a representative, witness, or another
employee attend because you reasonably fear that
the matters to be discussed may result in disciplin-
ary action, discharge or otherwise discipline you for
refusing to sign documents or to take other action
which we direct you to take during that meeting.
WE WILL NOT in any like or related manner in-
terfere with any of your rights set forth above
which are guaranteed by the National Labor Rela-
tions Act.
WE WILL offer Henry M. Burke immediate and
full reinstatement to his former position, dismissing,
if necessary, anyone who may have been hired or
assigned to perform the work which he had been
performing prior to the time that he was terminated
on November 1, 1978, or, if that position no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privi-
leges, and make him whole for any loss of pay he
may have suffered as a result of our discrimination,
with interest.
E. I. DUPONT DE NEMOURS AND COMPA-
NY, INCORPORATED
1047