1 - National Labor Relations Board

134 Thirty-fourth Annual Report of the National Labor Relations Board
issue were too fundamental to be contracted away by the union,
and that the employer could no more prohibit the exercise of
these rights by agreement with the union than it could so unilaterally.
Under its view of the circumstances in another case 32 the
Fifth Circuit declined to adopt the Board's finding that an employer
violated section 8(a) (5) and (1) of the Act by refusing
to allow a union representative to be present at an interview
with an employee suspected of theft. The court noted that the
Board itself had recognized 33 that an employee's right to union
representation does not apply to all dealings with his employer
which may eventually affect the terms and conditions of his
employment and had found no violation of the Act in the exclusion
of union representatives from an employer-employee interview
designed to gather information where the employer had
not yet committed himself to disciplinary action. In the instant
case, the Board had concluded that, because the employee had
been suspended prior to the interview, the employer was committed
to disciplinary action, and the interview constituted an
attempt to deal with the employee concerning a term or condition
of his employment. However, the court pointed out that
the employer was not committed to disciplinary action, since
the suspension of the employee was pursuant to a company policy
which provided that the employee would suffer no loss of pay
if the suspicion of theft proved unfounded. It further noted that
in any event, since there was no evidence that the interview
dealt with the consequences of the employee's misconduct, the
fact that the employer was already committed to a course of
action would not necessarily transform a factfinding interview
into a collective-bargaining session at which union representation
would be required.
2. Employer Discrimination Against Employees
Many of the cases reviewed by courts of appeals involved
employer actions found to constitute discrimination motivated
by employees' union membership or activity, or lack thereof,
and therefore violative of section 8 (a) (3) of the Act. Two such
cases decided by the Second Circuit involved the legality of
discharges, or threats thereof, pursuant to union-security clauses.
" Texaco, Inc. v. N.L.R B, 408 F.2d 142 See Thirty-third Annual Report ( 1965). P. 75.
" Jacobe-Peareon Ford, 172 NLRB No. 84, Thirty-third Annual Report (1968), p. 75;
Chevron Oil Co., 168 NLRB No. 84 (1967).