Cook Paint and Varnish Company v. National Labor Relations Board , 648 F.2d 712 ( 1981 )

HARRY T. EDWARDS, Circuit Judge:

At issue in this case is whether an employer violates Section 8(a)(1) of the National Labor Relations Act (“NLRA” or the “Act”)¹ by seeking to compel employees, at an investigatory interview, to respond to questions raised by company counsel relating to a union grievance that has been scheduled for arbitration. The National Labor Relations Board (“NLRB” or the “Board”) held in this case that Cook Paint & Varnish Company (the “company”) violated Section 8(a)(1) of the Act by threatening two employees with suspension or discharge if they refused to respond to such questions, and ordered the company to cease and desist from this allegedly unlawful conduct. In reaching this conclusion, the Board adopted what appears to be a per se rule that an employer may never use a threat of discipline to obtain information from an employee concerning a matter that has been set for arbitration. On petition for review brought by the company, and cross-application for enforcement by the Board, we decline to enforce the order of the Board and remand this case to the Board for further proceedings.

I. BACKGROUND

The facts are not in dispute and may be stated briefly.² On February 3, 1978, an incident occurred at a company facility that contributed to the eventual discharge of employee Paul Thompson.³ This discharge led to the filing of a contract grievance by the Paintmakers and Allied Trades Local 754 (the “union”), the certified bargaining representative of the company’s employees. When the grievance was not resolved successfully under the established grievance provisions of the collective bargaining agreement between the company and union, the union appealed the case to binding arbitration.

After the matter had been scheduled for arbitration, the company called in William Nulton, its outside labor relations attorney. A. 110.⁴ The company presented Nulton with a case file on the dispute, which included information concerning two proceedings related to the Thompson discharge that had been decided adversely to the company. In one proceeding, Thompson had been awarded unemployment compensation from the Missouri Employment Security Division, after a hearing in which the company’s contention that Thompson had been fired for cause was rejected. ALJ 3.⁵ In the second proceeding, the Occupational Safety and Health Administration (OSHA) had issued a citation and fined the company $450 following an administrative investigation of the February 3 incident. A. 77, ALJ 3.

Believing that, as a result of the outcome of these two related proceedings, the arbitration case perhaps should be settled, Nulton decided to interview persons potentially knowledgeable of the February 3 incident. A. 77-80. In particular, Nulton sought to interview Jesse Whitwell and Doug Rittermeyer, two employees who had been interviewed by the Government investigator pri- or to the issuance of the OSHA citation. A. 76. Both Whitwell and Rittermeyer worked in the same area in which Thompson had been employed at the time of the February 3 incident; Whitwell was also the union steward responsible for that area.⁶

On April 21, Whitwell was called to the office of the employer’s general superintendent for a meeting with company counsel. Nulton informed Whitwell that he was preparing for the forthcoming arbitration and wanted to find out what Whitwell knew of the incident involving Thompson that had occurred on February 3. ALJ 4. Whitwell was told that he was not the subject of the investigation and would not be disciplined for truthful answers, but that the company had a legal right to question him. Nulton also informed Whitwell that if he refused to answer questions posed by company counsel, he would be subject to discipline. Id. After consulting with Robert Reinhold, counsel for the union, Whit-well decided to answer “under protest.” Id⁷

After Whitwell’s interview was concluded, Nulton similarly attempted to question employee Rittermeyer. When Rittermeyer expressed reluctance to answer questions about the Thompson matter, he was told by Nulton that he would be suspended or discharged if he refused to do so. ALJ 5. As a result of this threat, Rittermeyer responded to Nulton’s questions. Id.

The questioning of Whitwell and Rittermeyer was purely factual in nature, concerning solely the events that occurred at the plant on February 3. A. 94-97,104-05.⁸ Neither employee was asked whether he would testify at the upcoming arbitration, or whether he had been requested to testify. A. 105-06. Nor were the employees questioned concerning statements that had been given to the OSHA investigator. A. 111.

After the interviews were concluded, the union filed an unfair labor practice charge, alleging that the company had violated Section 8(a)(1) of the Act⁹ by threatening employees with disciplinary action “because of their engaging in concerted activity.” ALJ 1. A complaint was issued by the Regional Director of the Board, and a hearing was conducted before Administrative Law Judge Josephine Klein.

At the hearing, Nulton explained his insistence on questioning Whitwell and Rittermeyer. As described by Administrative Law Judge Klein:

Nulton testified that he had not been consulted until after Respondent had lost the unemployment compensation case and had been fined by OSHA. Although there had been hearings in the compensation case, the OSHA investigation had been confidential. It was known that OSHA had spoken to Whitwell and Rittermeyer, but Respondent’s representatives had no inkling of what the employees had said. Nulton said he believed he could successfully handle the matters involved in the unemployment compensation case, but he felt he needed to know what Whitwell and Rittermeyer had told OSHA because OSHA rarely issued citations or imposed fines without sound reason.

AU 5. Nulton testified that he sought the information in an attempt to determine whether the case should be settled. A. 80. Nulton stated further that there “very definitely” had been occasions when he had convinced employer clients to settle cases after arbitration had been set but before a hearing had been conducted. A. 78.

The Administrative Law Judge found a violation of Section 8(a)(1) as charged. The AU concluded that “Respondent improperly coerced employees Rittermeyer and Whitwell when it threatened them with discipline if they refused to cooperate by providing information to Respondent in the course of its preparation for arbitration of employee Thompson’s discharge.” AU 14. In addition, as an alternative holding, the ALJ stated that, “[e]ven if it were to be held that employees generally may not refuse to be interviewed by their employers in preparation for arbitration of a grievance, such rule could not appropriately be applied to Whitwell, who was the shop steward in Thompson’s department.” Id. The ALJ thus found the interrogation of Whitwell to be an independent violation of the Act.

Upon the filing of exceptions the Board concluded that “[w]e agree with the Administrative Law Judge that Respondent violated Section 8(a)(1) of the Act by threatening employees Jesse Whitwell and Douglas Rittermeyer with suspension and or discharge if they refused to respond to questions posed by Respondent’s counsel relating to a grievance proceeding which was scheduled for arbitration.” Cook Paint and Varnish Co., 246 N.L.R.B. No. 104 at 1-2 (Nov. 30, 1979) (footnote omitted). The Board opinion states what appears to be a blanket or per se rule that

an employer that seeks to compel its employees to submit to questioning in such circumstances violates Section 8(aXl).

Id. at 3.¹⁰ Since the Board found that all employees are protected from such questioning, the Board found it “unnecessary to pass on the question of whether a union steward is entitled to different treatment in the type of situation presented here than are employees generally.” Id. at 2 n.2. The Board thus did not adopt the alternative holding of the AU.

II. GENERAL RIGHTS TO INFORMATION UNDER THE NATIONAL LABOR RELATIONS ACT

A. Introduction

The Board has established in this case what appears to be a per se rule that an employer is barred by Section 8(aXl) of the Act from using a threat of discipline to obtain information from an employee concerning a matter that has been set for arbitration pursuant to a contractual grievance-arbitration procedure. The right of an employer to interview employees during the pendency of an arbitration hearing has never been addressed by the courts. Before turning to this novel question, however, it may be helpful to note briefly certain established tenets concerning general rights of parties to obtain information under the National Labor Relations Act.

B. The General Duty to Furnish Information In the Context of Collective Negotiations and Grievance Handling

The Supreme Court has rejected a rule that would automatically result in a finding of bad-faith bargaining under Sections 8(d) and 8(a)(5) of the Act whenever an employer rejects a request from a union for information related to collective negotiation.¹¹ Rather, the Court has held that “[e]ach case must turn upon its particular facts. The inquiry must always be whether or not under the circumstances of the particular case the statutory obligation to bargain in good faith has been met.” NLRB v. Truitt Manufacturing Co., 351 U.S. 149, 153, 76 S.Ct. 753, 756, 100 L.Ed. 1027 (1956). Nevertheless, as a general proposition, it is well-accepted that, “if [an] employer is in possession .of information which is necessary or relevant to the union in discharging its function as bargaining representative, the employer will normally be required to turn over that information upon request of the union.” Gorman, Basic Text on Labor Law 409 (1976).

A similar rule has developed in the context of grievance handling. In NLRB v. Acme Industrial Co., 385 U.S. 432, 87 S.Ct. 565, 17 L.Ed.2d 495 (1967), the Court enforced a decision of the Board that an employer violated the duty to bargain by refusing to furnish requested information that would allow a union to decide whether or not to process a grievance to arbitration. This decision was held to be consistent with “the national labor policy favoring arbitration.” 385 U.S. at 439, 87 S.Ct. at 569. As explained by the Court:

Arbitration can function properly only if the grievance procedures leading to it can sift out unmeritorious claims. For if all claims originally initiated as grievances had to be processed through to arbitration, the system would be woefully overburdened. Yet, that is precisely what the respondent’s restrictive view would require. It would force the union to take a grievance all the way through to arbitration without providing the opportunity to evaluate the merits of the claim.

Id. at 438, 87 S.Ct. at 569.

The duty of an employer to furnish information relevant to the processing of a grievance does not terminate when the grievance is taken to arbitration. In Timken Roller Bearing Co. v. NLRB, 325 F.2d 746 (6th Cir. 1963), cert. denied, 376 U.S. 971, 84 S.Ct. 1135, 12 L.Ed.2d 85 (1964), the court considered a union request for information concerning five grievances that awaited hearings before a chosen arbitrator. The employer refused to disclose the information, and was found by the Board to have violated Section 8(a)(5). The Sixth Circuit enforced the order of the Board, stating that the union had a statutory right to obtain the information pursuant to the duty to bargain requirement of Section 8(d) of the Act.

In Fawcett Printing Corp., 201 N.L.R.B. 964 (1973), the Board similarly affirmed, without comment, the rulings, findings, and conclusions of an Administrative Law Judge that an employer violated Section 8(a)(5) by refusing to comply with a demand for information in connection with a grievance scheduled for arbitration. The company had argued that the union’s agreement to submit the grievance to arbitration deprived it of any right that it otherwise may have had to obtain the information. The ALJ rejected this argument, stating that “the statute has been interpreted to require the provision, after as well as before a grievance has been submitted to arbitration, of requested information necessary to its intelligent evaluation and processing.” 201 N.L.R.B. at 972.

The Administrative Law Judge went on to explain the decision in Fawcett at length, in part as follows:

Like requiring the production of such information during earlier stages of the grievance procedure, requiring its production on request made after arbitration has been sought, “[f]ar from intruding upon the preserve of the arbitrator,” would “aid ... the arbitral process” (Acme, supra, 385 U.S. at 438 [87 S.Ct. at 569]). Thus, here, as in Acme, the burden on the arbitral system would be lessened if information provided by Respondent either persuaded the [union] that its grievance lacked merit and should be dropped, or induced the [union] to offer a compromise which might prove acceptable to Respondent. Indeed, the entire class of cases which impose the duty to provide relevant information are based on the view that such information will contribute to the resolution of industrial differences by mutual agreement — a principal statutory purpose. Fulfillment of this purpose would be impeded by withdrawing from the parties at any stage the rights and duties calculated to promote the possibilities of settlement.

201 N.L.R.B. at 972. The ALJ further observed that disclosure was necessary because provisions governing the grievance-arbitration process may substantially limit the time available for investigation before a decision must be made whether to take a grievance to arbitration, and because skilled and sophisticated representatives of the parties may not become involved in the case until the later stages of the arbitration process. Id. Thus, “the period during which Respondent would exclude any duty to provide information might well be the very period during which its provision might contribute the most toward settlement of the grievance without arbitration.” Id.¹² Finally, it is significant to note that the ALJ in Fawcett expressly rejected a contention of the employer that “the adversary nature of arbitration proceedings” renders inappropriate the requirement that relevant information be supplied. Id.

Not surprisingly, the general duty to furnish information also has been held to impose certain obligations on unions — as well as employers — during the course of collective bargaining. In Local 13, Detroit Newspaper Printing and Graphic Communications Union v. NLRB, 598 F.2d 267 (D.C. Cir.1979), this court enforced a decision of the Board that a union violated its duty to bargain by refusing to disclose certain information requested by the employer during the course of contract negotiation. The court noted that an employer has a duty to disclose relevant information to a union upon request, and stated that a union is “likewise obliged” to furnish the employer with relevant information. 598 F.2d at 271.¹³

The Board also has held that an employee must furnish information to an employer during an investigation of alleged employee misconduct. As the Board recognized in the present case, “the Board has previously found that an employer can, without violating Section 8(a)(1), seek to compel its employees to submit to questioning concerning employee misconduct when the employer’s inquiry is still in the investigatory stage and no final disciplinary action has been taken.” 246 N.L.R.B. No. 104 at 2. Service Technology Corp., 196 N.L.R.B. 845 (1972); Primadonna Hotel, Inc., 165 N.L.R.B. 111 (1967). As explained by an Administrative Law Judge in Service Technology:

[A] proper balance must be struck between the Company’s right to uncover improper conduct on the part of certain employees in its endeavors to maintain order in its business and the rights of those employees. I find in these circumstances that no right accrued to the employees under the Act, which protected their refusal to talk or to remain uncooperative, and that, therefore, these threats were not violative of the Act.

196 N.L.R.B. at 847.

C. Board Deference to Arbitral Judgments Regarding the Duty to Disclose Information In Grievance Handling

In Pacific Southwest Airlines, Inc., 242 N.L.R.B. No. 151 (June 14, 1979), the Board considered a case virtually identical to the present action. In Pacific Southwest, as in the present case, an employer’s attorney attempted to interview two employees before a scheduled arbitration hearing, in order to prepare for the arbitration and to review the employer’s position. The two employees refused to be interviewed, and consequently were suspended and thereafter discharged. The union filed grievances to protest these discharges, and pursued the grievances to arbitration. Following a hearing, the arbitrator found that the employer had acted within its rights in attempting to interview the employees, and that disciplinary action therefore was justified.¹⁴

Following the completion of the arbitration, the union filed an unfair labor practice charge alleging that the disciplinary action taken violated Section 8(a)(3) of the Act. A complaint was issued by the Regional Director, but the Board dismissed this complaint. Under the principles of Spielberg Manufacturing Co., 112 N.L.R.B. 1080 (1955), both the Administrative Law Judge and the Board deferred to the decision of the arbitrator that the disciplinary action taken by the employer was lawful.¹⁵ The Board explained its decision to defer as follows:

The arbitrator found that [the employees] were the witnesses to the drinking incident whose interviews had been the basis of Respondent’s action to the incident; that, as an almost routine practice, a party to arbitration interviews its witnesses in preparation for the hearing to permit, as here, its attorney to view the evidence first hand and to assess the evidence in light of a possible settlement; that Respondent sought to question on-duty employee witnesses about the conduct of other on-duty employees during the drinking incident; and that therefore Respondent had the right to expect good-faith cooperation. The arbitrator also found that Respondent did not seek disclosure of what [the employees] would testify to at the hearing or the details of the Union’s position; that Respondent did not go beyond legitimate inquiry into job-related conduct; that the interviews were not coercive; and that therefore Respondent did not wrongfully intrude upon or interfere with the grievance procedure. For the above reasons and those set forth in detail by the Administrative Law Judge, we find that the arbitration award with respect to the suspensions of [the employees] is not repugnant to the purposes and policies of the Act and fully meets the Spielberg standards for deferral.

242 N.L.R.B. No. 151 at 4-5 (footnote omitted; emphasis supplied).

Because of these reasons cited in Pacific Southwest, the Board held that a decision of an arbitrator that an employer had an enforceable right to interview employees the day before a scheduled arbitration hearing was not repugnant to the purposes and policies of the Act. In the present case, however, the Board rejected those same reasons and established a “blanket rule” that such employer conduct violates Section 8(a)(1) of the Act.

The company advances two principal arguments in support of its contention that the decision of the Board in the present case is improper. First, the company asserts that under the duty to bargain requirement of Section 8(d) of the Act, Whitwell and Rittermeyer had an obligation to furnish the company information relevant to the pending arbitration. Second, the company contends that there is no substantial evidence to support the Board’s finding that the employer conduct at issue here violated Section 8(a)(1). Against the background of the established principles described above, we turn to consider these arguments.

III. PRE-ARBITRATION INTERVIEWS AND SECTION 8(a)(1)

In considering the decision of the Board in this case, we emphasize at the outset that “[t]he function of striking [the] balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review.” NLRB v. Truck Drivers Local 449, 353 U.S. 87, 96, 77 S.Ct. 643, 648, 1 L.Ed.2d 676 (1957). As further provided by Section 10(e) of the Act:

The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive.

29 U.S.C. § 160(e) (1976). Moreover, this court has stressed very recently that the Board possesses an unmatched expertise in distilling and identifying the coercive effects of employer conduct. United Steelworkers v. NLRB, 646 F.2d 616 at 629 (D.C.Cir. 1981).

At the same time, the Supreme Court has made clear that “a reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board’s view.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951).¹⁶ This court has refused to enforce orders of the Board that have not been supported by substantial evidence. Midwest Regional Joint Board v. NLRB, 564 F.2d 434 (D.C.Cir. 1977); Local 433, United Brotherhood of Carpenters v. NLRB, 509 F.2d 447 (D.C.Cir. 1974).¹⁷

The Board in the present case has established a per se rule that an employer may never use a threat of discipline to compel employees to respond to questions relating to a grievance proceeding that has been scheduled for arbitration. Upon a careful examination of the record, we are unable to find substantial evidence to support this finding. As set forth more fully below, pre-arbitration interviews are a matter of routine practice in many sectors of industrial relations. In these sectors, investigatory interviews are conducted by advocates in preparation for a pending arbitration without any infringement of protected employee rights. Indeed, although the Board has been in existence for nearly a half century, and private arbitration for almost as long, we are unaware of any prior Board or judicial decision even suggesting that all pre-arbitration interviews are per se coercive of employee rights under the Act.

We believe that the rule announced by the Board in the present case unnecessarily and impermissibly interferes with the manner in which parties to a collective bargaining relationship structure the arbitration process. As a result, we hold that the legality of pre-arbitration interviews is generally a contractual matter to be determined by the parties in establishing a grievance-arbitration procedure, subject only to the normal restraints imposed by the Act that employer conduct not be unlawfully coercive in a particular case.

The prevalence of pre-arbitration interviews has been noted by one of the industry’s most preeminent arbitrators. In the arbitration case preceding the Board decision in Pacific Southwest Airlines, supra, Professor Edgar A. Jones, Jr., a professor of labor law and evidence at UCLA Law School and President-elect of the National Academy of Arbitrators, observed in his opinion that:

It is almost routine for a union or an employer advocate — lawyer or not — to go to the locale of a pending arbitration a day or two before a scheduled hearing in order to interview witnesses and plan the details of the morrow’s presentation. It is not at all unusual for that pre-hearing occasion to be the first time that the advocate has had the chance to get firsthand accounts of witnesses, to identify possible discrepancies among their accounts, to press them as a cross-examiner is apt to, to observe their demeanor and evaluate their credibility, to assess the potential influence on the course of the hearing of what they have to say and how they are apt to say it in the context of the hearing.

Contrary to the impression expressed by the Union representatives and the potential witnesses in this case, that kind of encounter immediately before a hearing is simply not in itself a “dirty pool” situation. Instead, it is an important part of the administration of the grievance procedure. It is by no means unusual for cases to be settled on the day — or even the hour — before the hearing is to convene based on the advocate’s last-minute, eye-opened assessment of the significance of these pre-hearing contacts.

Pacific Southwest Airlines, Inc., 242 N.L. R.B. No. 151 (June 14,1979), Appendix A to decision of Administrative Law Judge, at 14.¹⁸ In Pacific Southwest, both the Administrative Law Judge and the Board made reference to these findings of Professor Jones in concluding that his decision that an employer has an enforceable right to conduct pre-arbitration interviews was not repugnant to the purposes and policies of the Act.

Given this practice in industrial relations, acknowledged by the Board in Pacific Southwest, we do not believe that the Board in the present case has established by substantial evidence that an employer demand for a pre-arbitration interview coerces employees in the exercise of protected legal rights. At that interview, an employer advocate may, perhaps for the first time, obtain factual information from witnesses, observe demeanor, and in general evaluate the merits of a pending dispute. On the basis of the record established by the Board, we are unable to perceive the manner in which such a limited investigation coerces protected employee rights. As a result, we hold that an employee does not have an automatic right to refuse to respond to questions concerning a matter that has been scheduled for arbitration.

This decision is consistent with the fundamental nature of the arbitration process. Arbitration is a matter of contract between the parties, noted for its flexibility and informality. United Steelworkers v. Warri- or & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960). The Supreme Court has stated that “it is the informality of arbitral procedure that enables it to function as an efficient, inexpensive, and expeditious means for dispute resolution.” Alexander v. Gardner-Denver Co., 415 U.S. 36, 58, 94 S.Ct. 1011, 1024, 39 L.Ed.2d 147 (1974). As noted in Abrams, The Integrity of the Arbitral Process, 76 Mich.L.Rev. 231, 235 (1977), “[arbitration procedure remains, for the most part, a matter of the parties’ choice.”¹⁹

Into this flexible and informal process, the Board here has injected a fixed law of procedure that an employer may not, under any circumstances, conduct a compulsory investigatory interview in preparation for a pending arbitration. As noted above, this rule is contrary to the practice established by the parties under many collective bargaining relationships. We do not believe that the Board has presented sufficient evidence to justify this interference with the arbitral process.

Counsel for the Board has made a somewhat extraordinary, and gratuitous, suggestion that:

The most favorable time for settling grievances is at the outset, before the parties’ positions have hardened; and the most favorable situation for settlement is where the parties have come to share a complete and comprehensive view of the relevant circumstances. An employer may be spurred to a painstaking investigation at the outset if he knows that further investigation is restricted once a grievance is headed for arbitration.

Brief for NLRB, p. 13 (emphasis supplied). This suggestion is extraordinary because it fails to comprehend that it is not the function of the Board to structure the manner in which parties to a collective bargaining agreement process and resolve .contract grievances. Just as the Board may not decree the time in which a party must respond to a filed grievance, the Board may not attempt to spur an employer to “a painstaking investigation at the outset” once a grievance is filed. The method in which disputes are resolved through a grievance-arbitration process is a contractual matter to be determined by the parties. The Board may not construct an inflexible rule that any compulsory interview conducted in preparation for a pending arbitration violates the Act.

In so holding, we do not suggest that limits do not exist on the permissible scope of a legitimate pre-arbitration interview. An employer may in certain cases be forbidden from inquiring into matters that are not job-related. An employer also may be prohibited from prying into union activities, or using the interview as an excuse to discover the union strategies for arbitration. In short, we do not here suggest that employers have a carte blanche license to interrogate employees prior to arbitration; the limits provided by Section 8(a)(1) remain available to prohibit coercive employer conduct in an individual case.

Similarly, the parties to a collective bargaining agreement may themselves decide, in establishing a grievance-arbitration procedure, that investigatory interviews will not be allowed prior to arbitration, or indeed at any time during the grievance resolution process. As emphasized above, the structure of a grievance-arbitration process is a matter of contract to be determined by the parties.²⁰

Our decision here is consistent with decisions of the Supreme Court and the Board requiring the disclosure of information in order to further the efficacy of the arbitral process. ■ As suggested by the Supreme Court in NLRB v. Acme Industrial Co., supra, for arbitration to be most effective, mechanisms must exist that sift out unmeritorious claims. In Fawcett Printing Corp., supra, the Board affirmed a conclusion of an Administrative Law Judge that the statutory goal of mutual agreement as the means of resolution of industrial differences “would be impeded by withdrawing from the parties at any stage the rights and duties calculated to promote the possibilities of settlement.” 201 N.L.R.B. at 972. As developed at length above, these cases have imposed upon an employer the duty to disclose information concerning a grievance both before and after the grievance has been appealed to arbitration.

The policies incorporated in these decisions do not evaporate when it is the employer who seeks information before arbitration to assess the merits of his or her case. Access to relevant information has a comparable effect on the likelihood that an employer will settle a pending dispute. In the present case, the employer’s advocate, who had not been brought into the dispute until arbitration had been set, sought to evaluate the employer’s position because of the fact that the company had not prevailed in two closely related proceedings. Though arbitration had been set, settlement remained a distinct possibility.

We acknowledge that this policy favoring settlement may not be fostered at the expense of protected employee rights. An employer demand for information from employees can exert pressures on those employees that are not present when a union demands information from an employer. For this reason, we do not hold that an employer has an inflexible right under Section 8(d) of the Act to seek information from employees concerning a pending grievance.²¹ Interrogation of employees remains subject in each case to the limitations of Section 8(a)(1) described above. We simply note that our decision here is consistent with the strong policy announced both by the Supreme Court and by the Board favoring the peaceful resolution of industrial dispute by mutual agreement.

In addition, our decision is consistent with those cases, acknowledged by the Board in this case, that establish that an investigatory interview conducted by an employer before disciplinary action is taken does not violate Section 8(a)(1). Service Technology Corp., 196 N.L.R.B. 845 (1972); Primadonna Hotel, Inc., 165 N.L.R.B. 111 (1967). While an employer’s purpose in conducting an investigatory interview before disciplinary action is taken may not always be the same as that after a grievance is filed, we fail to see that the effect on employees is materially different. We find it anomalous for the Board to suggest that an interview conducted in the former situation is protected under the Act, while the same interview conducted in the latter situation automatically violates Section 8(a)(1). In either case, we believe that an investigatory interview is permissible as long as held within the bounds of Section 8(a)(1) described above.

Finally, we believe that the Board has totally failed to reconcile this case with its earlier decision in Pacific Southwest. It is true that in Pacific Southwest the Board “deferred” to the decision of an arbitrator that an employer has an enforceable right to conduct a pre-arbitration interview. As recognized by the Board, however, such deferral is appropriate only if the arbitrator’s decision is not clearly repugnant to the purposes and policies of the Act. Spielberg Manufacturing Co., 112 N.L.R.B. 1080,1082 (1955). Therefore, the decision in this case, establishing a per se rule, makes no sense whatsoever in the light of the Board’s contrary judgment in Pacific Southwest. The Board has not reconciled the inconsistency between Pacific Southwest and the “blanket rule” announced here, as it must do. See Local 777, Democratic Union Organizing Committee v. NLRB, 603 F.2d 862, 871— 72 (D.C.Cir. 1978); Kohls v. NLRB, 629 F.2d 173 (D.C.Cir. 1980).²²

For all of these reasons, we find that the inflexible rule established in this case is not supported by substantial evidence and may not be enforced.

IV. DISPOSITION OF THE PRESENT CASE

We have concluded that the blanket rule announced by the Board, that any compulsory pre-arbitration interview violates Section 8(a)(1), is not supported by substantial evidence and cannot stand. As part of a contractual arbitration procedure, an employer may conduct a legitimate investigatory interview in preparation for a pending arbitration. As outlined above, however, that interview may not pry into protected union activities. It is against these standards that the interviews conducted in the present case must be evaluated.

In resolving this case, we believe that it is necessary to distinguish the company’s demand to interview Rittermeyer, a plant employee, from the demand to interview Whit-well, a plant union steward. While we refuse to enforce the finding of the Board that the interview of Rittermeyer violated Section 8(a)(1), we remand this case to the Board for further consideration of whether the interview of steward Whitwell violated the Act.

The record demonstrates that in the case of employee Rittermeyer, the company conducted a limited, investigatory interview concerning solely the employee’s knowledge of the events that occurred on February 3 that led to the discharge of fellow employee Paul Thompson.²³ As developed above, employer counsel Nulton did not inquire as to whether Rittermeyer would testify at the upcoming arbitration, nor did he question Rittermeyer concerning the statement Rittermeyer had earlier given to OSHA. In short, Nulton conducted a legitimate investigatory interview concerning a job-related incident in order to determine whether the company should proceed with a pending arbitration.²⁴ In these circumstances, the attempt by the company to compel Rittermeyer to respond did not violate Section 8(a)(1).

The questioning of Whitwell, however, must be viewed in a separate light. Had Whitwell been solely a fellow employee, as Rittermeyer, our analysis would parallel that above. However, Whitwell also served as the union steward responsible for the Thompson dispute. In her decision, the Administrative Law Judge stated, as an alternative holding, that the questioning of Whitwell violated Section 8(a)(1) because Whitwell was the shop steward in Thompson’s department and was “duty bound to serve Thompson’s interest.” ALJ 14-15. The ALJ found that to require Whitwell to submit to an interview would place him in a position of sharp conflict of interest. As a result of the “blanket rule” announced by the Board in this case, the Board did not adopt this alternative holding of the ALJ. As stated by the Board, “we find it unnecessary to pass on the question of whether a union steward is entitled to different treatment in the type of situation presented here than are employees generally.” 246 N.L. R.B. No. 104 at 2 n. 2.

As a result of our rejection of the Board’s blanket rule concerning employees, we believe that the Board must be given an opportunity to consider whether Whitwell was entitled to special protection due to his status as a union steward. As described by the ALJ, there are fundamental differences between an interview of an employee and an interview of a union steward. Most significantly, a steward may be acting pursuant to his position as a representative of the employees, responsible for processing the grievance at issue. To require collective bargaining representatives to submit to compulsory interviews might seriously infringe on protected activity. Since the Board explicitly chose not to consider this question, however, we remand this case to the Board for further proceedings on this issue.

In remanding, we do not mean to suggest that a “blanket rule” concerning union stewards is any more appropriate than a “blanket rule” concerning employees. For example, a union steward who has no representational responsibilities in a particular case, or one who may be directly involved in alleged acts of misconduct, may not be entitled to any special protection. See AU 15 n. 22; see also Service Technology Corp., 196 N.L.R.B. 845 (1972). We simply note that very different considerations may be relevant in considering the legality of an interview of a union steward that are not present in the case of employees generally.

Enforcement of the order of the Board is denied. The case is remanded for further proceedings consistent with this opinion.²⁵

So ordered.

1 . 29 U.S.C. §§ 151-69.

2 . A complete statement of the facts of this case is contained in the decision of the Administrative Law Judge, appended to the Decision and Order of the Board, 246 N.L.R.B. No. 104 (Nov. 30, 1979).

3 . The incident involved a “spill” in the Tank Washing Room, which allegedly caused Thompson to slip and fall.

4 . “A.” refers to the Appendix submitted in this case. There is some dispute concerning the actual date that Nulton was called into the case. The Board apparently admits, however, that the company referred the Thompson matter to Nulton after the union requested arbitration. Brief for NLRB, p. 3.

5 . “ALJ” refers to the decision of the Administrative Law Judge, appended to 246 N.L.R.B. No. 104.

6 . Under the terms of the collective bargaining agreement, Whitwell was to serve as Thompson’s representative in the first two steps of the grievance procedure. ALJ 14.

7 . In the course of the interview, Whitwell revealed that he had taken contemporaneous notes of the Thompson matter. Nulton “ordered” Whitwell to produce the notes (ALJ 4); Whitwell refused “because it was [his] union notebook.” Id. The ALJ found that Whitwell reasonably could not have interpreted the “order” as anything other than a threat that he would be disciplined for failing to turn over the notes. Id. Whitwell did not produce the notes; no disciplinary action, however, was taken. A. 123.

8 . At the hearing before the Administrative Law Judge, the following exchange took place between Whitwell and Board Counsel Waers:

Q [Waers]. What did he [Nulton] ask you questions about?

A [Whitwell]. He just asked me questions pertaining to the Paul Thompson case, the happenings on February the third pertaining to the spill, Mr. Thompson’s cleaning of the spill[,] of the conversations taking place between myself, Mr. Thompson, Mr. Malott, Mr. Wollery.

A. 26. Similarly, between Waers and Rittermeyer:

Q [Waers], And what did he [Nulton] ask you questions about, just briefly?

A [Rittermeyer]. The spill and how 1 cleaned it up and if there were tanks on racks or whatever.

A. 57.

9 . 29 U.S.C. § 158 (1976):

(a) It shall be an unfair labor practice for an employer—

(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title[.]

Section 157 (§ 7 of the Act) provides:

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 collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title.

29 U.S.C. § 157 (1976).

10 . Member Truesdale, concurring, described the Board decision as announcing “a blanket rule that an employer may not, under any circumstances, threaten to discipline, or discipline, an employee for refusing to participate in an interview concerning a work-related incident once the employer has disciplined the participants in the incident and the grievance machinery has been invoked.” 246 N.L.R.B. No. 104 at 6.

11 . Section 8(d) provides in relevant part:

For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions , of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession!.]

29 U.S.C. § 158(d) (1976). Violation of this duty to bargain collectively is made an employer unfair labor practice by § 8(a)(5) of the Act, and a union unfair labor practice by § 8(b)(3).

12 . The ALJ also noted that production of relevant information after the case has been submitted to arbitration would assist the parties in preparing the case for arbitration and thereby tend to shorten the arbitration hearing and to make the evidence received at the hearing more complete. 201 N.L.R.B. at 972.

13 . In Tool and Die Makers’ Lodge No. 78, 224 N.L.R.B. 111 (1976), an Administrative Law Judge found that a union violated § 8(b)(3) by refusing to furnish information requested during a grievance proceeding. The Board assumed “arguendo,” without deciding, that a union’s duty to furnish information is parallel to that of an employer. The Board declined to adopt the findings and conclusions of the ALJ, however, on the ground that it had not been established that the information requested was relevant to the bargaining process.

14 . The arbitrator determined, however, that the discharges should be converted to suspensions. The two employees were awarded reinstatement without any retroactive compensation.

15 . Under Spielberg, the Board will defer to an arbitration award where the proceedings appear to have been fair and regular, all parties have agreed to be bound, and the decision of the arbitrator is not clearly repugnant to the purposes and polices of the Act. 112 N.L.R.B. at 1082.

16 . The Supreme Court also stated in Universal Camera:

We conclude, therefore, that the Administrative Procedure Act and the Taft-Hartley Act direct that courts must now assume more responsibility for the reasonableness and fairness of Labor Board decisions than some courts have shown in the past. Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function. Congress has imposed on them responsibility for assuring that the Board keeps within reasonable grounds. That responsibility is not less real because it is limited to enforcing the requirement that evidence appear substantial when viewed, on the record as a whole, by courts invested with the authority and enjoying the prestige of the Courts of Appeals. The Board’s findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board’s decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both.

340 U.S. at 490, 71 S.Ct. at 466.

17 . See also International Brotherhood of Electrical Workers v. NLRB, 487 F.2d 1143 (D.C. Cir. 1973) (en banc), affirmed, Florida Power & Light Co. v. Electrical Workers Local 641, 417 U.S. 790, 94 S.Ct. 2737, 41 L.Ed.2d 477 (1974).

18 . Professor Jones has more than twenty-five years of experience as a labor arbitrator. See, e. g., Douglas Aircraft Co., 28 Lab. Arb. 198 (1957). In addition, Jones is a prolific labor arbitration scholar. As a sample of his legal writings, see Jones, “Truth” when the Polygraph Operator Sits as Arbitrator (or Judge): The Deception of “Detection" in the “Diagnosis of Truth and Deception,” Proceedings of the Thirty-First Annual Meeting, National Academy of Arbitrators (BNA, Inc. 1979); Jones, The Accretion of Federal Power in Labor Arbitration — The Example of Arbitral Discovery, 116 U.Pa.L.Rev. 830 (1968); Jones, Blind Man’s Buff and the NOW-Problems of Aprocrypha, Inc. and Local 711 — Discovery Procedures in Collective Bargaining Disputes, 116 U.Pa.L. Rev. 571 (1968); Jones, Evidentiary Concepts in Labor Arbitration: Some Modem Variations on Ancient Legal Themes, 13 U.C.L.AL.Rev. 1241 (1966); Jones, Autobiography of a Decision: The Function of Innovation In Labor Arbitration and the National Steel Orders of Joinder and Interpleader, 10 U.C.L.A.L.Rev. 987 (1963); Jones, Arbitration and the Dilemma of Possible Error, 11 Lab. L.J. 1023 (1960); Jones, Specific Enforcement of “Hot Cargo” Provisions In Collective Bargaining Agreements by Arbitration and Under Section 301(a) of the Taft-Hartley Act, 6 U.C.L.A.L.Rev. 85 (1959); Jones, Labor Arbitration and Stare Decisis: Some Introductory Comments, 4 U.C.L.A.L. Rev. 657 (1957).

19 . The Supreme Court stated in United Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960):

Section 203(d) of the Labor Management Relations Act, 1947, 61 Stat. 154, 29 U.S.C. § 173(d), states, “Final adjustment by a method agreed upon by the parties is hereby declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement.... ” That policy can be effectuated only if the means chosen by the parties for settlement of their differences under a collective bargaining agreement is given full play.

363 U.S. at 566, 80 S.Ct. at 1345.

20 . Violation of an agreement not to interview would of course be a violation of contract to be resolved through contractual dispute mechanisms.

21 . We also do not consider here the extent to which individual employees may be subject to the duty to bargain requirement of § 8(d).

22 . In Kohls, this court refused to enforce an order of the Board, in part because the Board had failed to explain an inconsistency similar to that present here. As stated in Kohls:

In Bloom [603 F.2d 1015 (D.C.Cir.)] the Board deferred to an arbitral judgment that the employer had not breached the collective bargaining agreement when it discharged an employee for refusing to work because he believed a truck to be unsafe. The arbitrator’s finding disposed of the alleged unfair labor practice charge, apparently to the Board’s satisfaction. It is difficult to understand how the Board could come to the opposite conclusion here, finding both an unfair labor practice and breach of the contract, in a case involving facts identical in all material respects to those in Bloom. The Board has given no rational reason for its contradictory decision in this case.

629 F.2d at 178.

23 . See note 8, supra.

24 . One piece of evidence in the record deserves comment here. In its decision, the Board stated, almost as an aside and entirely out of context, that: “Indeed, the attorney who conducted the questioning on behalf of Respondent candidly stated at the hearing that one of the reasons for the interview was to discover ‘what the union’s position would be if it went to arbitration.’ ” 246 N.L.R.B. No. 104 at 3 n. 3. As noted above, an investigatory interview may not seek to uncover the union’s theory or strategy for the upcoming arbitration. We do not believe, however, that this observation by the Board requires a determination here that the interviews in this case violated § 8(a)(1).

We decide so for three reasons. First, it is critical to note that the Board in the present case did not make a finding that the attorney attempted to discover the union’s position at arbitration; the Board merely noted, out of context, an off-hand remark by the attorney. The Administration Law Judge made no reference to this statement. Neither decision relied upon this evidence, and the Board has made no reference to it on this appeal.

Second, this statement of Nulton must be viewed in its full context. On direct examination by the company, Nulton described his involvement in, and preparation for, the Thompson arbitration. After discovering that OSHA had issued a citation based on the February 3 incident, Nulton became concerned over the merits of the company’s position, and the extent to which the company was prepared for the pending arbitration. As fully stated by Nulton:

So I asked what had been done. I ascertained that nothing had been done. I then made the suggestion that I thought somebody should interview these people to find out just what they might know as to the happenings of February the 3rd, so that 1) I would know what the union’s position would be if it went to arbitration or, if the testimony was as bad as, at least, OSHA had seen it to be, that the case would be, perhaps, settled.

A. 80. It appears likely from Nulton’s remarks that he sought nothing more than knowledge of what had occurred on February 3 in order to consider the propriety of settlement. In so doing, he would of course learn the strength of the case against him, or what may loosely be described as “the union’s position.” It simply cannot be assumed from this statement that Nulton sought to discover the union’s strategy for the case.

Third, and most importantly, the actual inquiry of the employees was solely job-related and in no way sought to discover the union’s position. See note 8, supra. Nulton did not inquire whether the employees would be witnesses at the arbitration, or into the content of any statement made to any other party. Absolutely no questioning was conducted concerning the union’s strategy for the hearing, or its proposed legal theory.

For these reasons, we conclude that there is no substantial evidence to support a finding that Nulton sought to use the interviews to discover the union’s position at the upcoming arbitration. We thus refuse to find a violation of § 8(a)(1) based on this limited out of context statement made by company counsel.

25 . Judge Wright has set forth at length some dissenting views in this case. We simply wish to note the fundamental difference between the position taken by the majority and that advanced by Judge Wright in this case. Essentially, we view pre-arbitration interviews as an integral part of the grievance-arbitration process; Judge Wright apparently does not. Given our assumption that pre-arbitration interviews are part of the grievance-arbitration process, it clearly follows that whether an opposing witness may be interviewed prior to arbitration is a matter to be decided by the parties, and not by Board rule. The Supreme Court has stated unequivocally that arbitration is a matter of contract, and that contractual matters are to be resolved without interference from the Board. In NLRB v. C&C Plywood Corp., 385 U.S. 421, 87 S.Ct. 559, 17 L.Ed.2d 486 (1967), the Court stated:

To have conferred upon the National Labor Relations Board generalized power to determine the rights of parties under all collective agreements would have been a step toward governmental regulation of the terms of those agreements. We view Congress’ decision not to give the Board that broad power as a refusal to take this step.

385 U.S. at 427-28, 87 S.Ct. at 563.

As recognized by Professor Jones, “[i]t is almost routine for a union or an employer advocate — lawyer or not — to go to the locale of a pending arbitration a day or two before a scheduled hearing in order to interview witnesses and plan the details of the morrow’s presentation.” Parties clearly have felt free to determine that an opposing witness may be interviewed before a scheduled arbitration. In addition, we find that the lack of precedent in this area is further evidence that parties have viewed this issue as one to be determined by contract. The institution of labor arbitration is nearly as old as the NLRA itself, yet not one case has been cited in which this issue has been taken previously to the Board. The question of whether an opposing witness may be interviewed prior to arbitration has been viewed as a matter to be decided pursuant to collective bargaining, and not by a per se Board rule. We see no reason to change that practice.

Judge Wright relies heavily on a long line of cases that have prohibited employer interrogation of an employee during the pendency of a case scheduled for a hearing before the NLRB. See Statement of Judge Wright, infra, p. 730 n. 29. There is a critical difference, however, between cases set before the NLRB and cases set for arbitration. Proceedings before the NLRB are instituted to protect employee rights arising under the National Labor Relations Act. Proceedings before an arbitrator are instituted to resolve contractual disputes arising under a collective bargaining agreement. As stated above, it is for the parties to determine the manner in which contractual disputes are resolved.

We again emphasize that an employer may not overstep the bounds of an investigatory pre-arbitration interview and pry into protected activity. The Board retains the authority to declare that such conduct is unlawful. In light of the traditions of collective bargaining in this country, however, we do not believe that the Board has the authority to announce a per se rule prohibiting all investigatory pre-arbitration interviews. Since the Board has advanced no reasoning or analysis in this case other than that all pre-arbitration interviews are unlawful, the order of the Board may not be enforced.