Anheuser-Busch Inc v. NLRB ( 2003 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ANHEUSER-BUSCH, INCORPORATED, 
Petitioner,
v.  No. 02-1740
NATIONAL LABOR RELATIONS BOARD,
Respondent.

NATIONAL LABOR RELATIONS BOARD, 
Petitioner,
v.  No. 02-1897
ANHEUSER-BUSCH, INCORPORATED,
Respondent.

On Petition for Review and Cross-application
for Enforcement of an Order
of the National Labor Relations Board.
(3-CA-21796, 3-CA-21906, 3-CA-22112)
Argued: February 26, 2003
Decided: August 1, 2003
Before WIDENER, KING, and SHEDD, Circuit Judges.
Petition for review denied and cross-application for enforcement
granted by published opinion. Judge King wrote the opinion, in which
Judge Widener joined. Judge Shedd wrote an opinion concurring in
part and dissenting in part.
2 ANHEUSER-BUSCH, INC. v. NLRB
COUNSEL
ARGUED: Arthur G. Telegen, FOLEY HOAG, L.L.P., Boston, Mas-
sachusetts, for Anheuser-Busch. Christopher Warren Young,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
Board. ON BRIEF: Robert A. Fisher, FOLEY HOAG, L.L.P., Bos-
ton, Massachusetts, for Anheuser-Busch. Arthur F. Rosenfeld, Gen-
eral Counsel, John E. Higgins, Jr., Deputy General Counsel, John H.
Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy
Associate General Counsel, Frederick C. Havard, Supervisory Attor-
ney, NATIONAL LABOR RELATIONS BOARD, Washington,
D.C., for Board.
OPINION
KING, Circuit Judge:
Anheuser-Busch Incorporated ("Busch") petitions this Court for
review of a Decision and Order entered against it by the National
Labor Relations Board (the "Board"). Anheuser-Busch, Inc., 337
N.L.R.B. No. 2 (Dec. 19, 2001) (the "Order").1 By its Order, the
Board affirmed an earlier decision of an Administrative Law Judge
(the "ALJ"), who concluded that Busch, on four occasions, had vio-
lated § 8(a)(1) of the National Labor Relations Act (the "Act").2 The
Board has cross-applied for enforcement of its Order. As explained
below, we deny the petition for review and grant the Board’s cross-
application for enforcement.
I.
Busch operates twelve breweries in the United States, including a
1
The Board subsequently made technical corrections and modified, in
minor part, its rulings against Busch. Anheuser-Busch, Inc., 337
N.L.R.B. No. 121 (July 5, 2002). In referring to the Order, we are refer-
ring to it as modified.
2
The Act is codified at 29 U.S.C. §§ 151-169, and § 8(a)(1) is codified
at 29 U.S.C. § 158(a)(1).
ANHEUSER-BUSCH, INC. v. NLRB 3
brewery in Baldwinsville, New York (the "Baldwinsville brewery").
At the Baldwinsville brewery, certain of Busch’s employees are rep-
resented by the Brewery Conference of the International Brotherhood
of Teamsters and the International Brotherhood of Teamsters, Local
No. 1149 (collectively, the "Teamsters"). In 1998 and 1999, the
Teamsters and brewery management engaged in contract negotiations
on a new collective bargaining agreement, leading to several contro-
versial incidents at the Baldwinsville brewery. As a result of these
incidents, the Teamsters filed a series of charges with the Board,
asserting that Busch had committed a host of unfair labor practices.
Ultimately, on December 2, 1999, the charges were consolidated into
a complaint against Busch (the "Complaint"), issued by the Board’s
Regional Director for the New York area.3
In order to assess the Teamsters’s allegations, the ALJ conducted
a hearing in Syracuse, New York, from March 8 through 10, 2000.
On July 7, 2000, the ALJ issued his decision, making findings of fact
and conclusions of law, and preparing a recommended order (the
"ALJ Decision").4 The ALJ concluded that Busch had committed four
unfair labor practices involving three employees who worked at the
Baldwinsville brewery, specifically, Patrick Lamirande, Joseph Rimu-
aldo, and Brian Meany. After the ALJ Decision was filed with the
Board, Busch filed exceptions to it. On review, the Board affirmed the
ALJ’s findings of fact and conclusions of law, and it adopted his rec-
ommended order.5 Order at 1. As noted above, Busch has petitioned
3
The Teamsters initiated these proceedings by filing charges with the
appropriate Regional Director, who decided to issue and prosecute the
Complaint. See 29 C.F.R. § 101.8 (stating that if charges appear to have
merit, Regional Director institutes formal action by issuing complaint
and notice of hearing). The Teamsters then participated in the proceed-
ings before the ALJ. Id. § 101.10; 102.38. It is appropriate for Busch to
have petitioned for review in this Court because the company transacts
business in Virginia. See 29 U.S.C. § 160(f) (stating that petition may be
filed in any circuit where party "transacts business").
4
The ALJ Decision is published with the Board’s Order at 337
N.L.R.B. No. 2 (Dec. 19, 2001).
5
In resolving a complaint, an ALJ is obliged to set forth his findings
of fact and conclusions of law, in addition to preparing a recommended
order. 29 C.F.R. § 101.11. An ALJ’s decision, including his recom-
4 ANHEUSER-BUSCH, INC. v. NLRB
for our review of the Order, and the Board has cross-applied for its
enforcement. We possess jurisdiction pursuant to 29 U.S.C. § 160(f).
II.
A. Incidents Involving Patrick Lamirande
On December 15, 1998, Teamsters member Patrick Lamirande, a
production operator at the Baldwinsville brewery, allegedly
obstructed an independent contractor doing work for Busch (the
"Contractor Incident"). At approximately 11:15 the following morn-
ing, Mark Burlingame and Art Lux, members of the brewery’s man-
agement, approached Lamirande and began questioning him about the
incident. Lamirande promptly requested the presence and assistance
of Dan Finn, a shop steward in Lamirande’s department, who was
already aware of the facts underlying the Contractor Incident.6
Assuming Finn was at lunch, Burlingame declined this request, call-
ing instead for Fred Vogel, another shop steward in Lamirande’s
department. Vogel arrived at the site of Lamirande’s questioning
within fifteen minutes, and after speaking privately with Lamirande,
Vogel renewed the request for Finn’s presence. Burlingame denied
this request, stating that Lamirande should respond to the allegations
immediately. Lamirande declined to discuss the matter without Finn,
and Burlingame sent him home for the day.
The next morning, December 17, 1998, Lamirande was directed to
Burlingame’s office for a meeting with management. Upon reporting
to the office, he met with Vogel, Burlingame, Lux, Howard Ormsby
(a Teamsters business agent), and Ken Silva (a brewery assistant
manager). Ormsby, speaking on Lamirande’s behalf, requested that
mended order, is then filed with the Board. Id. If a party files exceptions,
the Board reviews the exceptions and issues a decision and order. Id.§ 101.12(a). If no exceptions are filed, the ALJ’s decision and recom-
mended order become the decision and order of the Board. Id.
§ 101.12(b).
6
A shop steward is a union member who, among other duties, is autho-
rized to act as an employee’s representative in an investigatory interview.
See generally 29 U.S.C. § 402(q).
ANHEUSER-BUSCH, INC. v. NLRB 5
Finn be allowed to attend the meeting and represent Lamirande, but
Silva insisted that Finn’s presence was unnecessary. Lamirande was
questioned without Finn, and Burlingame thereafter informed Lami-
rande that he would be disciplined for the Contractor Incident. As a
result of these events, the Teamsters filed a charge with the Board,
alleging that Busch had committed two unfair labor practices in refus-
ing Lamirande’s requests (on December 16 and 17) to be represented
by Finn.
In assessing the Teamsters’s allegations, the ALJ ruled that, under
the Supreme Court’s seminal decision in NLRB v. J. Weingarten, Inc.,
420 U.S. 251 (1975), and pursuant to the Board’s related precedents,
"an employee has the right to specify the representative he or she
wants, and the employer is obligated to supply that representative
absent some extenuating circumstances." ALJ Decision at 6. Pursuant
to this principle, the ALJ concluded that, although Finn may have
been eating lunch when Burlingame initially wanted to question
Lamirande, Finn was nevertheless "available" as a representative. Id.Finn had previously circumscribed his lunch breaks in order to repre-
sent employees. In any event, Finn would have completed his lunch
break within fifteen minutes of Lamirande’s initial request. By its
Order, the Board agreed with the ALJ’s ruling that Busch had com-
mitted two unfair labor practices in denying Lamirande’s requests to
be represented by a particular shop steward. Order at 1.
B. Incidents Involving Joseph Rimualdo
In 1987, Joseph Rimualdo, a member of the Teamsters, began
working in the packaging, bottling, and shipping department of the
Baldwinsville brewery. In 1998, he became a shop steward, and he
soon learned of certain safety issues in two other departments of the
brewery. In January of 1999, he filed six grievances related to those
safety issues. Upon being informed of these grievances, Fred Singler,
the manager of Rimualdo’s department, met with Rimualdo and the
managers of the two departments involved in the safety grievances,
Lux and Nick Alivero. In this meeting, Singler asserted that Rimualdo
had failed to follow the proper procedures for addressing the safety
issues. Rimualdo admitted that this assertion was accurate, and the
meeting adjourned. Four days later, upon seeing Rimualdo drinking
a Labatt’s Blue beer in a tavern near the brewery, Lux said, "This is
6 ANHEUSER-BUSCH, INC. v. NLRB
two strikes. You got one for filing safety grievances and you got one
for drinking Labatt’s Blue." ALJ Decision at 11. As a result of this
incident, the Teamsters charged Busch with an unfair labor practice,
asserting that Lux had threatened Rimualdo for filing safety griev-
ances, an activity protected by the Act.
Before a hearing was conducted on this charge, Rimualdo was
involved in another incident at the brewery. On August 25, 1999,
Rimualdo, with a group of fellow employees, was hand stamping
dates on packages of beer. On that occasion, Rimualdo accidentally
got ink on his hands. Lux approached the group and, according to
Rimualdo, said, "You got to be careful what you say and what you
do around this guy, he’s bad news." Lux then stated to Rimualdo:
"You got to be pretty good with having ink on your fingers." Id. at
12. The latter comment, according to Rimualdo, referred to Rimual-
do’s recent arrest and fingerprinting in a domestic incident involving
his ex-wife. Lux told him, "You made it very tough for me, filing
those charges with the [Board]. We’ll see in September." Id. Rimu-
aldo claimed that, after these statements, Lux threatened to get even
with him in some way.7 Based on this incident (the "Stamping Inci-
dent"), the Teamsters, on September 8, 1999, charged Busch with
another unfair labor practice charge, alleging that Busch had "inter-
fered with, restrained and coerced Rimualdo in the right to engage in
protected, concerted activity by threatening and disciplining him for
filing a charge with the [Board]."8
7
Other employees, including Dwight Hart and Supervisor Dan
Tamulevich, were present during Lux’s interactions with Rimualdo. Hart
corroborated Rimualdo’s version of events, indicating that Lux made
remarks about the ink on Rimualdo’s hands and that Lux commented on
the pending charges before the Board. By contrast, Lux and Supervisor
Tamulevich insisted that it was Rimualdo, in making a joke at his own
expense, who referred to the ink on his hands. Tamulevich denied that
Lux had referred to the grievances Rimualdo had filed or to the upcom-
ing hearing on the two strikes incident.
8
The Complaint issued by the Board’s Regional Counsel revised this
allegation slightly, asserting that Busch had threatened Rimualdo
because "he had given testimony to the Board" during a prior investiga-
tion.
ANHEUSER-BUSCH, INC. v. NLRB 7
As to Lux’s comments at the tavern, the ALJ found that they were
based on Rimualdo’s apparent disloyalty in drinking a competitor’s
beer, rejecting the Teamsters’s assertion that Busch had threatened
Rimualdo because he had filed safety grievances. ALJ Decision at 11.
The ALJ thus concluded that Lux’s comments to Rimualdo at the tav-
ern did not constitute an unfair labor practice. Id. On the Stamping
Incident, however, the ALJ found that Lux had threatened Rimualdo
because of the Teamsters’s pending charge before the Board, and he
thus concluded that Busch had committed an unfair labor practice. Id.
at 12. By its Order, the Board agreed with the ALJ’s determinations.
Order at 1.
C. Incidents Involving Brian Meany
On February 11, 1999, Teamsters member Brian Meany, an
employee in the brewing department of the Baldwinsville brewery,
attended a mandatory company communications meeting conducted
by Michael Harding, a senior executive from Busch’s headquarters in
St. Louis. At the outset of Harding’s presentation, the brewery’s
employees were advised that the meeting was for the purpose of dis-
cussing Busch’s financial performance and that there would be no dis-
cussion of collective bargaining or "contract issues." Following his
presentation, Harding entertained questions from employees. At that
time, Meany criticized Busch for its treatment of workers at the Bald-
winsville brewery. At one point, Meany read a list of symptoms of an
abused spouse, drawing an analogy to Busch’s treatment of its
employees. During Meany’s commentary, Harding urged Meany to
keep his comments brief, but Meany ignored this request.
When Meany reported to work the next day, February 12, 1999, he
was advised to find a shop steward and report to Brewmaster Sam-
martino’s office for a meeting with Sammartino and Human
Resources Manager Larry Harmon. At the meeting, Sammartino criti-
cized Meany for disrupting the communications meeting, suggesting
that, if Meany behaved that way again, he would be removed from the
Baldwinsville brewery and disciplined. Sammartino then said, "I want
you to know that the work you do on the floor here does not outweigh
the things you do in communications meetings. If you speak again at
a communications meeting, you will be fired." ALJ Decision at 8.
After Meany requested that this restriction be placed in writing, Har-
8 ANHEUSER-BUSCH, INC. v. NLRB
mon said, "You know what, you will be fired. Then the [Teamsters]
will go through the grievance procedure and what will happen will
happen." Id.
As a result of this incident, the Teamsters charged that Busch had
interfered with Meany’s right to engage in a protected activity by
threatening him for voicing his opinions on collective bargaining
issues. As to this charge, the ALJ agreed with the Complaint, con-
cluding that Busch management threatened Meany in reaction to a
protected activity and that Busch had thus engaged in an unfair labor
practice. Id. at 8-9. The Board also affirmed this conclusion, agreeing
that Busch had committed an unfair labor practice in its treatment of
Meany. Order at 1.
III.
In considering a petition for review, we are obliged to uphold the
Board’s legal interpretations if they are "rational and consistent" with
the Act. Sam’s Club, a Div. of Wal-Mart Stores, Inc. v. NLRB, 173
F.3d 233, 239 (4th Cir. 1999) (internal quotation marks omitted).
Indeed, if the Board’s resolution is a "defensible construction of the
statute," it is entitled to deference, because the "function of [effectuat-
ing] national labor policy is often a difficult and delicate responsibil-
ity, which the Congress committed primarily to the [Board], subject
to limited judicial review." Arrow Auto. Indus., Inc. v. NLRB, 853
F.2d 223, 237 (4th Cir. 1988) (internal quotation marks omitted). In
deciding legal issues, however, the Board should apply its principles
consistently. Sara Lee Bakery Group, Inc. v. NLRB, 296 F.3d 292,
295 (4th Cir. 2002). And when the Supreme Court has already inter-
preted a statutory provision, the Board’s interpretation and application
of the statute will be judged in relation to the Court’s rulings. Lech-
mere, Inc. v. NLRB, 502 U.S. 527, 536-37 (1992). Findings of fact
made by an ALJ and affirmed by the Board are conclusive, so long
as they are "supported by substantial evidence on the record consid-
ered as a whole." 29 U.S.C. § 160(e). And we have characterized sub-
stantial evidence as being "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." NLRB v.
Peninsula Gen. Hosp. Med. Ctr., 36 F.3d 1262, 1269 (4th Cir. 1994)
(internal quotation marks omitted).
ANHEUSER-BUSCH, INC. v. NLRB 9
IV.
We now turn to Busch’s contentions that the Board erred in decid-
ing that Busch had committed unfair labor practices in its treatment
of Lamirande, Rimualdo, and Meany.9 First, we assess Busch’s posi-
tion regarding Lamirande’s right to a particular union representative.
Second, we consider Busch’s contentions with regard to the charge
involving Rimualdo. Finally, we examine its challenges regarding
Meany’s activities at the communications meeting.
A.
Busch first challenges the rule articulated by the Board that, absent
extenuating circumstances, an employee subjected to an employer’s
investigation has the right to specify the union representative of his
choice (the "Representation Rule").10 Busch challenges the Represen-
tation Rule on three primary bases. First, it contends that the Rule is
inconsistent with the Act. Second, it maintains that, even if it is con-
sistent with the Act, the Rule is contrary to the Board’s own prece-
dents. Finally, and relatedly, Busch insists that the Rule cannot be
applied to this case because of the principle barring retroactive appli-
cation of the Board’s rules.
9
Each of the four unfair labor practices found by the ALJ and the
Board involve § 8(a)(1) of the Act, which provides that it is an unfair
labor practice for an employer "to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in [§ 7]." Pursuant to
§ 7 of the Act, employees have the right to engage in concerted activities
"for the purpose of collective bargaining or other mutual aid or protec-
tion."
10
Our dissenting colleague suggests that our shorthand use of the
phrase "Representation Rule" refers to a rule we invented in this proceed-
ing. See ante at 30. To the contrary, this is the Board’s rule. In focusing
on our rhetoric, our colleague has obscured the real issue in this case:
whether the Board’s Representation Rule is "rational and consistent"
with the Act. Put differently, we are not assessing whether the Act enti-
tles an employee to choose among available union representatives, but
rather whether the Board’s interpretation is a "defensible construction of
the statute." Arrow Auto. Indus., Inc., 853 F.2d at 237.
10 ANHEUSER-BUSCH, INC. v. NLRB
1.
To begin with, Busch insists that the Representation Rule is incon-
sistent with the fundamental purposes of the Act, as interpreted by the
Supreme Court in Weingarten. According to Busch, the Representa-
tion Rule interferes with an employer’s legitimate interests in disci-
plining its workers. Finally, it contends that the statutory basis of
Weingarten (i.e., that union representation safeguards the collective
interests of the bargaining unit) is inapplicable here.
In Weingarten, the Supreme Court held that an employee has a
right to union representation at any investigatory interview threaten-
ing disciplinary action. 420 U.S. at 253. An employer thus commits
an unfair labor practice in denying an employee’s request for such
representation. Id. Here, the Board decided that, in light of the
Supreme Court’s decision in Weingarten and the Board’s experiences
in resolving Weingarten-type disputes, an employee is entitled, absent
extenuating circumstances, to the union representative of his choice.
As explained below, we see the Representation Rule as a reasonable
interpretation and application of the Act.
First, the Act — as interpreted by the Supreme Court in Weingar-
ten — generally contemplates that an employee will have his choice
as to union representation. Indeed, § 1 of the Act provides that the
Act’s purpose is to protect "the exercise by workers of full freedom
of association, self-organization, and designation of representatives of
their own choosing." 29 U.S.C. § 151 (emphasis added). In Weingar-
ten, the Court emphasized that the right to union representation
"plainly effectuates the most fundamental purposes of the Act," which
is to enable workers to seek mutual aid and protection without undue
interference by their employers. 420 U.S. at 262. The choice of a rep-
resentative plainly furthers the ability of workers to seek such aid and
protection.11
11
Absent extenuating circumstances, an employer has no interest in
selecting between available representatives. By contrast, employees do
have an interest in selecting between representatives. For example, an
employee may know that a representative is already familiar with the
investigation, or may generally feel more comfortable with a particular
ANHEUSER-BUSCH, INC. v. NLRB 11
Second, the Act attempts to rectify the inherent power imbalance
of the workplace, and an employee’s ability to choose his own union
representative serves this goal. When an employee requests union rep-
resentation in an investigatory interview, the employee is seeking
assistance to deal with a "confrontation with his employer." Id. at 260.
In such a confrontation, the employee is generally at some disadvan-
tage, and the recognition of his right to choose his representative
serves, to some extent, to mitigate this inequality. As the Court stated
in Weingarten, "[r]equiring a lone employee to attend an investigatory
interview which he reasonably believes may result in the imposition
of discipline perpetuates the inequality the Act was designed to elimi-
nate." Weingarten, 420 U.S. at 262 (internal quotation marks omit-
ted). It is thus reasonable that, absent extenuating circumstances, an
employee should be entitled to designate the union representative who
will assist him during his employer’s investigatory interview.12
In this situation, the union had designated two shop stewards in
Lamirande’s department to serve as employee representatives. When
Lamirande initially requested representation by Finn,13 "no represen-
shop steward. In fact, in this instance, one of the reasons Lamirande
requested Finn was that Finn was aware of the facts involved in the Con-
tractor Incident. ALJ Decision at 3 (stating that when Vogel first spoke
with Lamirande, Lamirande stated: "I would like to see Dan Finn
because he is aware of my situation").
12
In reaching this conclusion, we are not placing an undue burden on
employers. An employer need not always summon a requested represen-
tative. The employer may deny an employee’s request for a particular
representative, forego the interview process, and render a decision based
on the information it has already obtained. Weingarten, 420 U.S. at 258.
Or, if extenuating circumstances exist (i.e., if the requested representa-
tive is unavailable), the employer may reject the employee’s request and
proceed accordingly.
13
Busch asserts that the record fails to support the conclusion that
Lamirande requested representation by Finn before Burlingame called
for Vogel. Indeed, Busch maintains that the ALJ simply assumed this
fact in order to create the current controversy. The ALJ, however, faced
with conflicting evidence on this point, was entitled to find, as he did,
that Lamirande had requested Finn’s presence before Burlingame called
for Vogel. ALJ Decision at 4.
12 ANHEUSER-BUSCH, INC. v. NLRB
tative was present" at the site of the proposed interview. ALJ Deci-
sion at 6. Indeed, Vogel was then in another part of the brewery and
had to be summoned via radio. Id. at 3. Finn was at lunch, but on pre-
vious occasions he had circumscribed his lunch breaks in order to rep-
resent employees. Additionally, he would have completed his lunch
break within fifteen minutes of the outset of the interview. Id. at 6.
The ALJ concluded that the fact Finn was on his lunch break at the
time of the initial request did not render him "less ‘available’ than
Vogel" to represent Lamirande.14 Id. In these circumstances, and in
keeping with applicable legal principles, the ALJ did not err in decid-
ing that Busch should have given Lamirande access to the representa-
tive of his choice.15
14
The ALJ acknowledged that a "short delay" would have resulted if
Busch, before seeking Finn’s presence at the interview, had waited until
he completed lunch. ALJ Decision at 6 (emphasis added). However,
because Finn had previously circumscribed his lunch breaks to represent
employees; because Finn would have finished his break in fifteen min-
utes; and because the allegations against Lamirande did not demand "in-
stant attention," the ALJ concluded that Busch did not have "sufficient
reason to deny Lamirande the representation he wanted." Id. Thus, the
ALJ found that "the fact that Finn was [at lunch] for a short period of
time [did not make] him any less ‘available’ than Vogel." Id. Busch does
not maintain that substantial evidence fails to support this finding, and
we have no basis for rejecting it. It is difficult to understand our col-
league’s assertion that "[t]he ALJ clearly erred in deciding that Steward
Finn was not less ‘available’ than Steward Vogel." Ante at 27. Our
review of findings of fact is limited to whether such findings are "sup-
ported by substantial evidence on the record considered as a whole." 29
U.S.C. § 160(e). And, as is often noted, although substantial evidence
requires more than a mere scintilla, it is less than a preponderance. Weis
Markets, Inc. v. NLRB, 265 F.3d 239, 243 (4th Cir. 2001). The ALJ was
in a better position to assess the representatives’ respective availability,
and there is sufficient support in the record to justify the ALJ’s finding
in this regard.
15
The Representation Rule may well be consistent with the prevailing
industrial practice. Cf. Weingarten, 420 U.S. at 267 (reasoning Board’s
construction was in "full harmony with actual industrial practice"). At a
minimum, the Rule is consistent with an agreement between Busch and
the Teamsters for future Weingarten situations. ALJ Decision at 3; see
also Coca-Cola Bottling Co. of Los Angeles, 227 N.L.R.B. 1276 (1977)
ANHEUSER-BUSCH, INC. v. NLRB 13
2.
Busch next contends that the Representation Rule is inconsistent
with Board precedent. See Sara Lee Bakery Group, Inc. v. NLRB, 296
F.3d 292, 295 (4th Cir. 2002) (holding that Board must apply its prin-
ciples consistently). In assessing this challenge to the Board’s ruling,
we note that the Court in Weingarten rejected a similar contention
regarding the Board’s consistency in adhering to precedent. There, the
employer pointed to several Board decisions, which had held that a
union representative was not required to be present at an investigatory
interview. The Court decided that, because an administrative rule nor-
mally "involves an evolutionary process," the Board was entitled to
modify its rule over time. Weingarten, 420 U.S. at 265. The Court
observed that it would "misconceive the nature of administrative deci-
sionmaking" to hold "that the Board’s earlier decisions froze the
development of this important aspect of the national labor law." Id.
at 265-66.
We agree with Busch that certain of the Board’s earlier decisions
arguably support the contention that an employee is not entitled to the
union representative of his choice. Specifically, in Coca-Cola Bottling
Co. of Los Angeles, 227 N.L.R.B. 1276 (1977), the Board decided that
an employer had not committed an unfair labor practice by refusing
an employee’s request to be represented by a particular shop steward.
In that case, the employee requested representation by a vacationing
union representative. The Board decided that, because of the
unavailability of the requested representative, the employer had not
committed an unfair labor practice in declining to wait for the
(stating that, if requested representative had not been on vacation,
employer would have adhered to its past practice and granted employee’s
request for particular representative). The separate opinion suggests that
the Board’s Representation Rule will discourage employers from con-
ducting investigatory interviews. Ante at 28. Congress, however, has
decided that such policy concerns are best addressed by the Board.
Indeed, our standard of review, i.e., whether the Board’s rule is "rational
and consistent" with the Act, ensures that the Board, rather than the
courts, has the authority to resolve such concerns. See Arrow Auto.
Indus., Inc., 853 F.2d at 237.
14 ANHEUSER-BUSCH, INC. v. NLRB
requested representative to return from vacation. In so concluding, the
Board stressed the admonition in Weingarten that the right to choose
representation should not interfere with an employer’s legitimate
business interests, such as conducting investigatory interviews with-
out undue delay.
Similarly, in Pacific Gas & Electric Co., 253 N.L.R.B. 1143(1981), the Board concluded that an employee did not have the right
to choose a particular union representative. In that situation, the
employer operated two facilities, separated by twenty minutes of driv-
ing time. During an interview at one facility, an employee requested
a union representative from the other facility, even though the
requested representative did not usually represent employees at the
interview location. The employer refused this request, instead calling
for the representative the union had designated for the facility where
the interview was to occur. Given those circumstances, the Board
concluded that the employer did not violate the Act by refusing the
employee’s request. Id. at 1144.
Although the Board’s Coca-Cola and Pacific Gas decisions indi-
cate that employees are not entitled to choose a representative, the
Board, in more recent decisions, has refined its rule regarding union
representation. For example, in GHR Energy Corp., 294 N.L.R.B.
1011 (1989), the Board was faced with a situation where the
requested union representative was available. In those circumstances,
the Board ruled that the employer had violated the Act in denying an
employee his chosen representative. Id. at 1042 (finding that the
employer’s "refusal to permit [an employee] to exercise his right to
select a union representative in accordance with the Weingarten doc-
trine . . . violated § 8(a)(1) of the Act"). Thus, by 1989, the Board had
firmly indicated that, so long as the requested union representative is
reasonably available, an employer should accommodate an employ-
ee’s request for a particular representative. See also Consolidation
Coal Co., Robinson Run Mine No. 95, 307 N.L.R.B. 976 (1992) (rul-
ing that employer committed unfair labor practice in denying employ-
ee’s request when union representative was available and ready to
proceed).
Then, in New Jersey Bell, 308 N.L.R.B. 277 (1992), the Board
again addressed this issue. There, a union attempted to provide an
ANHEUSER-BUSCH, INC. v. NLRB 15
employee with a particular representative, but the employer ignored
the union’s choice and picked another representative. The employer
contended that, pursuant to Weingarten, Pacific Gas, and Coca-Cola,
it was not obligated to provide the employee with the representative
selected by the union. The ALJ in New Jersey Bell rejected this con-
tention, observing that the Board’s decisions in Pacific Gas and
Coca-Cola stood only for the proposition that an employer need not
postpone its investigatory interview in order to accommodate an
employee’s request.16 The ALJ concluded that the employer was
obliged to demonstrate a significant reason for denying the union’s
request for a particular representative. Because the union’s chosen
representative was, in the words of the ALJ, "just as available" as the
representative selected by the employer, the employer had violated
the Act. The ALJ believed that, unless special circumstances exist, an
employer has no interest in selecting the representative. On review,
the Board adopted a forerunner of the Representation Rule, conclud-
ing that: "when two union officials are equally available to serve as
a Weingarten representative . . . the decision as to who will serve is
properly decided by the union officials, unless the employer can
establish special circumstances."17 Id.Thus, by 1992, the Board had taken a firm position that, absent
special circumstances (i.e., the requested union representative is
unavailable), the choice as to who will represent an employee during
an investigatory interview resides with the union and the employee,
not the employer.18 Beginning in 1977 with its Coca-Cola decision,
16
The ALJ in New Jersey Bell also distinguished Pacific Gas because
the Pacific Gas employee had requested a representative who did not
normally represent employees at the interview location, and the union
already had a system in place whereby an on-site representative was
available.
17
In New Jersey Bell, the Board disagreed with the ALJ’s determina-
tion that the employer had violated the Act. It concluded that, because
the requested representative had exceeded the scope of representation in
a prior interview, the employer had established special circumstances for
its denial.
18
In support of its position here, Busch also relies on the Board’s deci-
sions in Williams Pipeline Co., 315 N.L.R.B. 1 (1994) and LIR-USA
Manufacturing, Co., 306 N.L.R.B. 298 (1992). In Williams Pipeline Co.,
16 ANHEUSER-BUSCH, INC. v. NLRB
the Board has simply "modified and reformed its standards on the
basis of accumulating experience," as authorized and approved by the
Court in Weingarten. In such circumstances, we are constrained to
conclude that the Representation Rule is consistent with Board prece-
dent.
3.
Busch also asserts that the Representation Rule cannot be applied
to this case because it would be a retroactive application of the Rule.
See ARA Serv., Inc. v. NLRB, 71 F.3d 129, 135 (4th Cir. 1995) (stat-
ing that Board cannot retroactively apply new rules). At the time of
its Coca-Cola and Pacific Gas decisions, the Board had not decided
that an employee is entitled to the union representative of his choice.
Since then, however, the Board has refined its approach to union rep-
resentation, developing its present position over the course of many
years and several decisions. In light of these developments, the Repre-
sentation Rule does not signify a substitution of new law for old law.
See ARA Serv., Inc., 71 F.3d at 135 ("[Only w]hen a Board decision
creates a new rule . . . by overruling past precedents relied upon by
the parties [is] the propriety of its retroactive application called into
question."). In sum, we conclude that the Board appropriately found
Busch to have committed unfair labor practices by failing to accom-
modate Lamirande’s requests for a particular representative.19
however, the Board merely recognized that an employer does not have
to postpone an investigatory interview when another union representative
is available. 315 N.L.R.B. at 5. And in LIR-USA, the ALJ simply noted
that an employer is not obligated to accommodate an employee’s request
when a requested representative is unavailable. 306 N.L.R.B. at 302.
Neither of these decisions is contrary to the Representation Rule.
19
Busch also asserts that the record does not support the ALJ’s finding
that Lamirande personally requested Finn’s presence on December 17,
1998. That Lamirande’s request was voiced by Lamirande’s representa-
tives on December 17, 1998, does not alter the fact that Lamirande had
personally requested Finn’s presence on the prior day. In these circum-
stances, the ALJ was entitled to find that Lamirande had requested Finn’s
presence on December 17th, even though his request was technically
made through a union official.
ANHEUSER-BUSCH, INC. v. NLRB 17
B.
On the Board’s disposition of the charges relating to Rimualdo,
Busch challenges the Order in two respects. First, it contends that the
Board violated its due process rights by finding an unfair labor prac-
tice that was not alleged in the Complaint. Second, it maintains that
the ALJ’s finding regarding Lux’s threat to Rimualdo is not supported
by substantial evidence. We assess these contentions in turn.
1.
In their initial charge, the Teamsters alleged that Busch "interfered
with, restrained and coerced Rimualdo in the right to engage in pro-
tected, concerted activity by threatening and disciplining him for fil-
ing a charge with the [Board]." The Complaint, by contrast, alleged
that, on August 25, 1999, Busch (through its agent Lux) "threatened
an employee with unspecified reprisals because the employee had
given testimony to the Board during a prior investigation." After the
hearing, the ALJ found that Busch had threatened Rimualdo for caus-
ing the Teamsters to file an unfair labor practice charge in connection
with the two strikes incident. The ALJ’s conclusion tracks the lan-
guage of the initial charge that the Teamsters filed with the Board
(and served on Busch) rather than the allegation of the Complaint.
Busch asserts that, in these circumstances, it was denied due process
because the ALJ’s finding had no foundation in the Complaint.
In similar circumstances, we rejected an employer’s challenge —
based on a due process contention — that the Board had found an
unfair labor practice not alleged in the complaint. In Standard-Coosa-
Thatcher Carpet Yarn Division v. NLRB, 691 F.2d 1133, 1136 n.3
(4th Cir. 1982), the Board’s General Counsel charged that an
employer had threatened its employee with a loss of benefits if she
voted in favor of a union. After hearing and considering evidence, the
ALJ and the Board concluded that the employer had actually enticed
the employee with a promise of benefits if she voted against the
union. The employer objected to this finding, asserting that it was at
variance with the complaint. We disagreed, concluding that the
employer had ample notice that an unfair labor practice was alleged
with respect to the specific conversation between the employer and
the employee. Thus, the employer had received due process in the
18 ANHEUSER-BUSCH, INC. v. NLRB
Board proceeding even though the ALJ’s finding was phrased differ-
ently from the allegation of the complaint. Id. (citing NLRB v. Tam-
per, Inc., 522 F.2d 781, 790 (4th Cir. 1975)).
The principle established in Standard-Coosa-Thatcher is control-
ling here. Busch was on notice that Lux’s comments to Rimualdo dur-
ing the Stamping Incident formed the gravamen of the unfair labor
practice charge set forth in the Complaint. Indeed, four separate wit-
nesses testified about the Stamping Incident, and the content and con-
text of Lux’s comments to Rimualdo were fully litigated. As in
Standard-Coosa-Thatcher, the ALJ and the Board were entitled to
articulate their findings in a manner that comported with the evidence.
Standard-Coosa-Thatcher, 691 F.2d at 1133 n.3. In these circum-
stances, Busch received ample notice that it was being charged with
an unfair labor practice because of Lux’s statements on August 25,
1999, in connection with the Stamping Incident. Thus, Busch received
all the process it was due.
2.
Busch next contends that the record fails to support the ALJ’s find-
ing that Lux threatened Rimualdo for engaging in protected activity.
Under § 8(a)(1), the filing of "grievances and Board charges are pro-
tected activities under the Act." Equitable Gas Co., Div. of Equitable
Res., Inc. v. NLRB, 966 F.2d 861, 866 (4th Cir. 1992) (citing 29
U.S.C. § 157 and NLRB v. City Disposal Sys., Inc., 465 U.S. 822, 836,
(1984)). An employer thus "violates § 8(a)(1) by threatening reprisals
for engaging in such protected activity." Id. (citing NLRB v. U.S.
Postal Serv., 906 F.2d 482, 486 (10th Cir. 1990)). Here, the ALJ
decided that Lux was threatening Rimualdo because of the pending
charges before the Board. In so concluding, the ALJ simply credited
Rimualdo’s and Hart’s versions of the Stamping Incident, rejecting
the conflicting evidence offered by Busch. When an administrative
record is fraught with conflicting testimony, we are obliged to defer
to the Board’s resolution of such conflicts. See NLRB v. Air Prods.
& Chems., Inc., 717 F.2d 141, 145 (4th Cir. 1983). We are thus con-
strained to conclude that the ALJ’s finding — i.e., that Lux threatened
Rimualdo for engaging in protected activity — is supported by sub-
stantial evidence.
ANHEUSER-BUSCH, INC. v. NLRB 19
C.
Finally, Busch raises two challenges to the Board’s conclusion that
it committed an unfair labor practice with respect to Brian Meany.
First, it contests the ALJ’s finding that Meany engaged in protected
activity during the communications meeting. Second, it maintains that
the Order and remedial notice are overly broad. We assess each of
these contentions in turn.
1.
On the evidentiary issue, the record amply supports the ALJ’s find-
ing that Meany was engaged in protected conduct during the commu-
nications meeting. ALJ Decision at 8-9. When an employee makes
comments or asks questions of his employer concerning working con-
ditions, he is unquestionably engaging in protected activity. See Con-
sumer Prod. Co., 282 N.L.R.B. 130, 132 (1986). An employee,
however, can lose the Act’s protections if his "conduct is so egregious
as to take it outside the protection of the Act, or of such a character
as to render the employee unfit for further service." Id. In support of
its contention on this issue, Busch relies primarily on the Board’s
decision in Eagle Picher Industries, Inc., 331 N.L.R.B. 169 (2000).
There, the employer instructed his employees to hold questions until
the end of a company presentation, but an employee disobeyed the
instruction and continuously interrupted the presentation. In its deci-
sion, the Board concluded that the employee’s conduct was not pro-
tected by the Act.
This case presents a factual setting that differs materially from
Eagle Picher. The communications meetings sponsored by Busch
were mandatory for all employees. At the end of each meeting, Busch
allowed its employees to ask questions. As the ALJ concluded, an
employer should reasonably expect unfavorable questions or state-
ments in such situations. ALJ Decision at 8-9. In the communications
meeting, Meany did not interrupt Harding’s presentation. Indeed, he
waited until Harding recognized him for a question before discussing
issues concerning employee morale. The record thus supports the
Board’s conclusions that Meany’s comments were not inappropriate,
much less egregious, and that he was engaged in protected activity.
Order at 1.
20 ANHEUSER-BUSCH, INC. v. NLRB
2.
Busch also asserts that the remedy crafted by the Board is over-
broad, in that it is not properly tailored to fit the unfair labor practice
it was intended to redress. See Ultrasystems W. Constructors, Inc. v.
NLRB, 18 F.3d 251, 258 (4th Cir. 1994). By its Order, the Board
required the posting of a notice advising Baldwinsville brewery work-
ers that Busch was prohibited from threatening to "discharge an
employee if he or she engages in a concerted protected activity,
including engaging in such activity when speaking at corporate com-
munications meetings." Order at 1. It is elementary that the Board
possesses broad discretion in crafting its orders, Ultrasystems, 18 F.3d
at 258, and there is no requirement that such an order be tailored so
as to preclude only the unlawful conduct arising from a particular
incident or employee. NLRB v. Mexia Textile Mills, 339 U.S. 563, 568
(1950). In these circumstances, and in light of these principles, the
terms of the Order are not overbroad.
V.
Pursuant to the foregoing, we deny Busch’s petition for review and
grant the Board’s cross-application for enforcement.
PETITION FOR REVIEW DENIED AND CROSS-
APPLICATION FOR ENFORCEMENT GRANTED
SHEDD, Circuit Judge, concurring in part and dissenting in part:
I concur in the part of the majority opinion denying Busch’s peti-
tion for review and granting the Board’s cross-application for
enforcement as to the Rimauldo and Meany incidents. I dissent, how-
ever, from the majority’s denial of Busch’s petition for review and its
grant of the Board’s cross-application for enforcement relating to the
two Lamirande incidents.
I dissent for several reasons. Most important, the majority’s "Rep-
resentation Rule" exceeds the scope of § 7 of the National Labor
Relations Act (the "NLRA" or the "Act"), 29 U.S.C. § 157. Also,
under the particular facts of this case, Busch afforded Lamirande all
ANHEUSER-BUSCH, INC. v. NLRB 21
the important protections that § 7 and the Weingarten rule were
intended to provide. Moreover, the majority’s "Representation Rule"
actually tends to undermine the protections afforded by the Weingar-
ten rule.
I.
The majority’s "Representation Rule" impermissibly expands the
right first announced by the Supreme Court in N.L.R.B. v. J. Weingar-
ten, Inc., 420 U.S. 251 (1975).1 The employer in Weingarten accused
one of its employees of stealing. The employer’s security agent inter-
viewed the employee about the allegations. Although the employee
repeatedly requested a union steward to assist her during the inter-
view, the security agent refused. After verifying the employee’s
defense, the security agent apologized to the employee and assured
her that the matter was closed.
Relieved, the employee burst into tears and made a seemingly
incriminating statement about a separate matter. The security agent
immediately launched yet another investigatory interview. The
employee again asked for a union steward, but the agent again denied
the request.
The Supreme Court held that a union employee is entitled to have
union representation during an investigatory interview that the
employee reasonably believes might result in disciplinary action. Id.
at 262. This proposition has generally become known as the "Wein-
garten right" or the "Weingarten rule." See, e.g., B. Glenn George,
Visions of a Labor Lawyer: The Legacy of Justice Brennan, Wm. &
Mary L. Rev. 1123, 1171 (1992). The Court in Weingarten based its
1
The majority insists that the "Representation Rule" is the Board’s
invention rather than its own. Ante at 9, n.10. The majority’s insistence
on this somewhat semantical point is curious. First, the majority, not the
Board, coined the phrase "Representation Rule." Second, even though
the majority may not have "invented" the "Representation Rule," the
majority has placed its imprimatur on the new rule by finding it to be
rational and consistent with the Act. Third, future litigants seeking pro-
tection or further extension of the "Representation Rule" will surely cite
the majority’s opinion rather than the Board’s order.
22 ANHEUSER-BUSCH, INC. v. NLRB
conclusion on the provisions of § 7 of the Act, the same provision at
issue in this case. Section 7 states in pertinent part:
Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection. . . .
(Emphasis added).
The Court reasoned that an employee’s right to union representation
during an investigatory meeting is based on the guarantee that
employees have under § 7 to act in concert "for mutual aid or protec-
tion." Weingarten, 420 U.S. at 260.
In wrestling with the seeming inconsistency between the statutory
language, on one hand, which is aimed at "concerted" activity and
"mutual" aid and protection, and the individual employee’s claim, on
the other hand, that she had been deprived of union representation
during an investigatory meeting, the Court explained:
The union representative whose participation [the employee]
seeks is, however, safeguarding not only the particular
employee’s interest, but also the interests of the entire bar-
gaining unit by exercising vigilance to make certain that the
employer does not initiate or continue a practice of impos-
ing punishment unjustly. The representative’s presence is an
assurance to other employees in the bargaining unit that
they, too, can obtain his aid and protection if called upon to
attend a like interview. Concerted activity for mutual aid or
protection is therefore . . . present here.
Id. at 260-61.
The Court found that providing a union representative during an
investigative interview effectuates some of the primary purposes of
§ 1, 29 U.S.C. § 151, of the Act.2 Id., at 262. Such protection, the
2
The majority’s suggestion that § 1 grants an individual employee his
personal choice of union representation, see ante at 10, is misplaced.
ANHEUSER-BUSCH, INC. v. NLRB 23
Court reasoned, is consistent with the Act’s goal of eliminating the
"inequality of bargaining power between employees . . . and employ-
ers." As Justice Brennan explained for a majority of the Court:
A single employee confronted by an employer investigating
whether certain conduct deserves discipline may be too fear-
ful or inarticulate to relate accurately the incident being
investigated, or too ignorant to raise extenuating factors. A
knowledgeable union representative could assist the
employer by eliciting favorable facts, and save the employer
production time by getting to the bottom of the incident
occasioning the interview.
Id. at 262-63. Thus, the Court found that affording a "lone employee"
a union representative during an investigatory interview in which the
risk of discipline reasonably inheres falls within the protection of § 7
"read in the light of the mischief to be corrected and the end to be
attained." Id. at 262.
By enforcing the Board’s decision in this case, the majority estab-
lishes a new right for individual employees that is untethered from § 7
of the Act and is not envisioned by Weingarten. Whereas the Wein-
garten rule and § 7 are designed to allow employees "to engage in . . .
concerted activities for the purpose of . . . mutual aid or protection,"
the majority’s "Representation Rule" fails to effectuate any collective
right of employees. Instead, the majority’s holding guarantees each
individual employee the right to choose a particular union representa-
Section 1 declares it the policy of the United States to eliminate hin-
drances to the "free flow of commerce" generally by encouraging collec-
tive bargaining and "the exercise by workers of full freedom of
association, self-organization, and designation of representatives of their
own choosing." 29 U.S.C. § 151 (emphasis added). This right to desig-
nate representatives arises in the context of the collective activities of
workers in a group. As Justice Marshall explained in a case decided the
day before Weingarten, the NLRA, to secure the collective strength of
the bargaining unit, establishes a regime of majority rule wherein the
rights of some individuals might be subordinated to the interests of the
majority. Emporium Capwell Co. v. Western Addition Community Orga-
nization, 420 U.S. 50 (1975).
24 ANHEUSER-BUSCH, INC. v. NLRB
tive he or she desires, even when, as is in the instant case, that partic-
ular representative is not as available as another competent and duly
elected union representative and when the employee has no material
basis for insisting on one particular representative over another.3 This
new right that the majority creates does not advance the collective
interests of the bargaining unit.
The majority asserts that granting an individual employee the right
to demand one qualified, duly elected steward over another will help
mitigate the inequality between employer and employee and will
make the employee "generally feel more comfortable." See ante at 10,
n.11. As for the first purported justification, if both stewards are com-
petent and duly elected by the bargaining unit, allowing the individual
employee to choose one over the other does not benefit the collective
interests of the bargaining unit in the slightest. One competent, duly
elected steward mitigates the inequality between employer and
employee just as much as any other steward. As for the second pur-
ported justification, making an individual employee "generally feel
more comfortable" is not the important type of right that § 7 and the
Weingarten rule are intended to protect.4
3
There are, no doubt, instances when an employee would have a mate-
rial reason for preferring one representative over a proffered representa-
tive. If, for instance, the employee and the proffered representative have
a long history of animosity toward each other, the employer, after being
informed of this circumstance, should replace the proffered representa-
tive with another representative. This replacement would be required not
only because the proffered representative would be biased against the
individual employee but also because the proffered representative’s bias
could affect his ability to represent the interests of the unit as a collective
whole during the investigatory interview. No such circumstance exists in
this case. If it had, it would be consistent with the Weingarten rule and
§ 7 to require the replacement "in the light of the mischief to be corrected
and the end to be attained."
4
The majority also asserts that the "Representation Rule" is justified
because it would allow an employee to choose a steward who is already
familiar with his case. That simply is not the type of important right pro-
tected by Weingarten. In fact, the ALJ in this case found it unimportant
that a particular steward might already be "up to speed." J.A. 13. The
type of prompt, nonadversarial interview envisioned by Weingarten does
not require that a steward have in-depth knowledge about the incident
under review.
ANHEUSER-BUSCH, INC. v. NLRB 25
The Weingarten rule stands for the weighty proposition that an
employee should not be forced to undergo an investigatory interview
without the assistance of a union steward, who ensures that both the
employee and the bargaining unit are treated justly. The majority’s
new rule does not advance the interests of the bargaining unit as a
whole. Therefore, the "Representation Rule" exceeds the scope of § 7
of the Act and is an impermissible extension of the Weingarten rule.5
See Maislin Industries v. Primary Steel, Inc., 497 U.S. 116, 131
(1990) ("Once we have determined a statute’s clear meaning, we
adhere to that determination under the doctrine of stare decisis, and
we judge an agency’s later interpretation of the statute against our
prior determination of the statute’s meaning.").6
5
We are obliged to uphold the Board’s interpretation of a statute only
if it is rational and consistent with the Act. See Sam’s Club v. N.L.R.B.,
173 F.3d 233, 238 (4th Cir. 1999). Reviewing courts are not to stand
aside and rubber stamp Board determinations that are contrary to the lan-
guage or tenor of the Act. Weingarten, 420 U.S. at 266.
6
Moreover, I dissent because the majority’s "Representation Rule,"
even if it could be construed as a permissible interpretation of § 7, cannot
be enforced retroactively against Busch. An important consideration in
determining whether to give retroactive application to a new rule is
deciding whether the rule proposed is an "abrupt break with well-settled
policy" or is merely an "attempt to fill a void in an unsettled area of law."
ARA Services, Inc. v. N.L.R.B., 71 F.3d 129, 134 (4th Cir. 1995).
The Board’s most recent pronouncement in a Weingarten rule case
was Williams Pipeline Co., 315 N.L.R.B. 1 (1994). In Williams, the
employee being investigated asked for a union steward who was not
immediately available. In deciding the case, the Board reaffirmed its
prior decision in Coca-Cola Bottling Co., 227 N.L.R.B. 1276 (1977). In
Coca-Cola, the Board held that an employer is not required to postpone
an investigatory hearing when the employee asks for a particular union
representative who is unavailable, if there is another qualified union rep-
resentative available.
Because Williams was the most recent decision by the Board prior to
the Lamirande incident, Busch was entitled to rely on it and the prior
Board decisions, like Coca-Cola, consistent with it. Therefore, even if
the majority’s "Representation Rule" were a permissible interpretation of
§ 7, it constitutes an abrupt reversal of prior policy that may not be
applied retroactively.
26 ANHEUSER-BUSCH, INC. v. NLRB
II.
I also dissent because the facts of this case reveal that Busch
afforded Lamirande all the important protections that § 7 of the Act
and the Weingarten rule provide. Lamirande, who soon before this
incident was elected as a union steward,7 was accused of endangering
the safety of other workers at the Busch plant. Busch chose to inter-
view Lamirande about the incident, even though it was not required
to under the law. Instead, it could have immediately commenced a
disciplinary proceeding. See Weingarten, 420 U.S. at 259.
Lamirande asked that Steward Finn be called to represent him dur-
ing the interview. Instead, Steward Vogel was summoned to the meet-
ing to represent Lamirande. Busch did not summon Steward Finn
because he was scheduled to be at lunch. The ALJ found that Busch
had a logical reason for not calling Steward Finn. He also found that
both Steward Vogel and Steward Finn were competent stewards, and
that Busch had no ulterior motive in wanting Steward Vogel to repre-
sent Lamirande rather than Steward Finn. Steward Vogel was duly
elected by the workers in Lamirande’s department and had regularly
represented workers during investigatory interviews.
Once Steward Vogel arrived, he was given an opportunity to speak
privately with Lamirande. Lamirande told him that he preferred Stew-
ard Finn because he was already "aware of my situation." J.A. 10.
There is no evidence in the record, however, that Steward Finn was
aware of Lamirande’s situation until after the first interview. The ALJ
also found that Lamirande never told Busch any reason why he
wanted Steward Finn rather than Steward Vogel to represent him. As
the ALJ found: "Lamirande asked for union representation and got it
promptly." J.A. 11.
The ALJ assumed that the interview began at 11:15 a.m. and that,
had the interviewer granted Lamirande’s request for Steward Finn, the
interviewer would have had to wait only 15 minutes until Steward
Finn returned from lunch. The ALJ found that this "short delay" was
not a sufficient reason to deny Lamirande’s request.8 The ALJ found
7
His term as steward commenced the month after this incident.
8
The ALJ also decided that Busch should have delayed the interview
and that nothing about the circumstances required instant attention.
Busch asserts correctly that these are legitimate prerogatives reserved to
the employer under Weingarten.
ANHEUSER-BUSCH, INC. v. NLRB 27
that, even though Steward Finn was on lunch break, he was not any
less "available" than Steward Vogel. J.A. 13.
The ALJ clearly erred in deciding that Steward Finn was not less
"available" than Steward Vogel. The interview began before Steward
Finn was scheduled to return from lunch. The interviewer was pre-
pared to proceed when Steward Vogel was present but Steward Finn
was not.9 Steward Finn was not "equally available" as Steward Vogel.10
At no time during the course of these interviews did anyone sug-
gest that it was a Weingarten violation for Busch to provide Steward
9
The majority contends that three prior Board decisions on which it
relies require only that the requested representative be "reasonably"
available. Ante at 14. This characterization is incorrect. In GHR Energy
Corp., 294 N.L.R.B. 1011 (1989), the requested representative arrived at
the interview before the representative proffered by the employer. In
New Jersey Bell Telephone Co., 308 N.L.R.B. 277, 282 (1992), and Con-
solidation Coal Co., 307 N.L.R.B. 976, 978 (1992), the requested repre-
sentatives were "equally available" and "present and ready to go
forward."
The majority’s mischaracterization is further evidenced by the Board’s
decision in LIR-USA Manufacturing Co., 306 N.L.R.B. 298 (1992). In
that case, the Board did not give any weight to the employee’s preference
for one steward over another steward when the requested steward was
not available within five minutes.
10
The majority asserts that the ALJ was in a better position to assess
the respective availability of the two stewards and therefore substantial
evidence exists in the record justifying the ALJ’s finding that Steward
Finn was not less "available" than Steward Vogel. Ante at 12, n.14.
"Availability" has had a distinct meaning under the Weingarten rule
cases. For example, a particular steward is "available" when he or she is
"present and ready to proceed." See cases cited ante at 27, n.9.
The ALJ ignored this accepted definition. Instead, the ALJ found that
Steward Finn was no less "available" because he could have been present
after a "short delay."
The only evidence in the record, however, is that Steward Finn was not
present and ready to proceed when Steward Vogel was present and ready
to proceed. Thus, there is no evidence to support the ALJ’s finding that
Steward Finn was no less "available."
28 ANHEUSER-BUSCH, INC. v. NLRB
Vogel rather than Steward Finn. In fact, it was not until after the
Region refused the union’s request to issue complaint over Lami-
rande’s suspension that the Weingarten issue was raised.
To suggest that Busch somehow tried to intimidate or overpower
Lamirande or tried to disadvantage him during the two interviews by
not allowing him to have Steward Finn as his representative lacks any
support in the record. There was clearly no "mischief to be corrected"
by having Steward Finn rather than Steward Vogel represent Lami-
rande. All the underlying policy reasons for the Weingarten rule were
attained, i.e., Steward Vogel safeguarded not only the particular inter-
ests of Lamirande but also the interests of the entire bargaining unit
by ensuring "that [Busch did] not initiate or continue a practice of
imposing punishment unjustly." Weingarten, 420 U.S. at 260-61.
Because Lamirande was competently represented in both interviews
by a duly elected steward, he was not the "lone employee" whom
Weingarten and § 7 protect.
III.
Finally, the majority’s "Representation Rule" is inconsistent with
the important protections the Weingarten rule was intended to foster.
As the majority rightly notes, an employer is not obligated to summon
a particular steward requested by an employee under any circum-
stance. Ante at 10-11, n.11. Instead, the employer has the prerogative
to forgo the interview process altogether and proceed to discipline the
employee immediately. The Court in Weingarten understood the dis-
advantages of this scenario. By establishing the Weingarten rule, the
Court attempted to create a policy that was "useful to both employee
and employer." Weingarten, 420 U.S. at 262. The Court explained the
benefit of the rule:
A knowledgeable union representative could assist the
employer by eliciting favorable facts, and save the employer
production time by getting to the bottom of the incident
occasioning the interview. Certainly his presence need not
transform the interview into an adversary contest. Respon-
dent suggests nonetheless that union representation at this
stage is unnecessary because a decision as to employee cul-
pability or disciplinary action can be corrected after the
ANHEUSER-BUSCH, INC. v. NLRB 29
decision to impose discipline has become final. In other
words, respondent would defer representation until the filing
of a formal grievance challenging the employer’s determina-
tion of guilt after the employee has been discharged or oth-
erwise disciplined. At that point, however, it becomes
increasingly difficult for the employee to vindicate himself,
and the value of representation is correspondingly dimin-
ished. The employer may then be more concerned with justi-
fying his actions than re-examining them.
Id. at 263.
The "Representation Rule" adds an unnecessary complication to
what the Court envisioned as a streamlined system of dispute resolu-
tion. Instead of "getting to the bottom of the incident occasioning the
interview," the new rule announced today will inevitably give rise to
new disputes like what constitutes an "extenuating circumstance" and
how long must the interviewer wait before proceeding with the inter-
view. These disputes will arise even in cases like this one, where the
employee demanding a particular representative will receive no addi-
tional benefit from and has no material reason for making such a
demand. Employers may well find it much more desirable to bypass
the interview process and proceed to discipline. This result is incon-
sistent with the goals of the Weingarten rule and § 7 of the Act.11
11
The majority suggests that it lacks authority to stop such an undesir-
able result, because Congress has delegated such policy considerations to
the Board. Ante at 12-13, n.15. As previously explained, ante at 25, the
court is not allowed to merely rubber stamp the Board’s interpretation of
a statute. Instead, a court must judge an agency’s interpretation against
the Supreme Court’s prior determination of the statute’s meaning. Mais-
lin Industries, 497 U.S. at 131. In Weingarten, the Supreme Court clearly
promoted the investigatory interview as a prompt, efficient, desirable
means of handling disputes for both the employer and the employee.
Weingarten, 420 U.S. at 262-63. The "Representation Rule" might cause
employers to bypass the interview process and thereby disadvantage
employees. This potential further suggests that the "Representation Rule"
is not a permissible interpretation of the Act.
30 ANHEUSER-BUSCH, INC. v. NLRB
IV.
Today, the majority coins the phrase "Representation Rule" to des-
ignate the new rule that it announces. This redesignation is warranted
because the "Representation Rule" is an impermissible extension of
the Weingarten rule.
For all of the above reasons, I respectfully dissent from the majori-
ty’s denial of Busch’s petition for review and its grant of the Board’s
cross-application for enforcement as to both of the Lamirande inci-
dents. The majority’s new "Representation Rule" exceeds the reach of
§ 7 of the Act.