Operations In Fiscal Year 1988 - National Labor Relations Board

60 Fifty-Third Annual Report of the National Labor Relations Boardlance to make certain that the employer does not initiate or continuea practice of imposing punishment unjustly," 9 as it is unlikelythat such an employee would have the benefit of a frameworksimilar to that typically established in a collective-bargainingagreement in which acts amounting to misconduct and meansof dealing with them are defined. Although a fellow employeemight be able to offer some assistance in getting to the bottom ofan incident, it is less likely that in the nonunion setting the employeewould possess the necessary skills to assist the employerin "eliciting favorable facts, and sav[ing] the employer productiontime."1°The Board acknowledged that an employee in a workplacewithout union representation might welcome the support of afellow employee at an interview he or she fears will lead to discipline,and that in some circumstances the presence of such aperson might aid the employee or both the employee and the employer;however, the Board concluded that the interests in assuringsuch representation under Section 7 are less numerous andless weighty than the interests apparent in the union setting andare outweighed by interests of the employer that the Court inWeingarten clearly indicated must be taken into account. Thus,the Board concluded that an employee in a nonunionized workplacedoes not possess a right under Section 7 to insist on thepresence of a fellow employee in an investigatory interview bythe employer's representatives, even if the employee reasonablybelieves that the interview may lead to discipline.3. Unlawful Employer ThreatsIn Gino Morena Enterprises," the Board considered whetherthe employer violated Section 8(a)(1) of the Act by threateningits employees with loss of their jobs if they engaged in an economicstrike. The Board reaffirmed the rule in Eagle Comtronics,"holding that an employer does not violate the Act bytruthfully informing its employees that they are subject to permanentreplacement in the event of an economic strike; however, ifthe employer's statement can be "fairly understood as a threat ofreprisal against employees or is explicitly coupled with suchthreats," it is not protected by Section 8(c) of the Act."Based on credited testimony, the administrative law judgefound that the respondent told employees it would be futile toengage in a strike and that they would probably lose their jobs ifthey struck. The Board concluded that the employer's statement'Id. at 260-261.13 Id. at 263."287 NLRB No. 145 (Chairman Stephens and Members Johansen, Babson, and Cracraft)."263 NLRB 515 (1982).s Member Johansen, who did not participate in Eagle Comtronics, took no position on the questionwhether an employer violates Sec. 8(aX1) of the Act through a totally unqualified statement that it canpermanently replace economic strikers.