Operations In Fiscal Year 1988 - National Labor Relations Board

Unfair Labor Practices . 59tection of employees protected by Section 7 of the Act. Accordingly,Member Johansen would have concluded that the respondentviolated Section 8(a)(1) when it changed Herald's workingconditions.2. Investigatory Interview in Nonunion Setting• In E. I. duPont & Co., 3 the Board considered whether, in a, nonunion setting, an employer violates Section 8(a)(1) of the Actby discharging an employee for refusing to submit to an investigatoryinterview without the presence of a fellow employee.The Board has long held, with Supreme Court approva1, 4 thatSection 7 embodies a statutory right for an employee to refuse tosubmit without union representation to an interview by employerrepresentatives that he or she reasonably fears may result in discipline.The Court, in affirming the existence of this right, reasonedthat the Board was charged with striking a balance betweenthe interests of labor and management in this area and thatpermitting union representation at an investigatory interviewserves to redress "the perceived imbalance of economic powerbetween labor and management." 5 In pointing out a number ofbenefits to be obtained by having union representation at an investigatoryinterview, the Court specifically noted that a unionrepresentative might be able to safeguard "not only the particularemployee's interest, but also the interests of the entire bargainingunit by exercising vigilance to make certain that the employerdoes not initiate or continue a practice of imposing punishmentunjustly," and that the presence of a knowledgeable union representativecould also serve the interest of the employer becausethe "union representative could assist the employer by elicitingfavorable facts" that an inarticulate employee might be too fearfulor otherwise unable to mention, thereby "sav[ing] the employerproduction time by getting to the bottom of the incidentoccasioning the interview."7Examining those interests in the nonunion setting, however,the Board concluded that the objectives listed by the Court wereeither much less likely to be achieved or were irrelevant, so thatrecognition of the right here would not represent "a fair and reasonedbalance" of employee and employer interests. 5 Thus, theBoard noted that in the nonunion setting there is no guaranteethat the interests of the employees as a group would be safeguardedby the presence of a fellow employee at an investigatoryinterview. Furthermore, an employee in a nonunion work forcewould be less able than a union representative to "exercis[e] vigi-3 289 NLRB No 81 (Chairman Stephens and Members Johansen, Babson, and Cracraft).4 NLRB v. .I. Weingarten, 420 U.S. 251 (1975).' 420 U.S at 262, 267.° Id. at 260-261.7 Id. at 263.8 Id. at 267.