Stevens, Circuit Judge, Grant,*fn* Senior District Judge, and Gordon,*fn** District Judge.
The question presented is whether employees have a statutory "right to representation" at fact-finding interviews conducted by management during an investigation of suspected theft of company property. Distinguishing a series of earlier cases, the Board held that such a right was created by § 7 of the National Labor Relations Act for employees who (a) personally requested Union representation at such interviews, and (b) reasonably feared that their jobs were in jeopardy. The Union contends that there is no statutory or logical basis for the Board's limitations on the right, while the Company argues that the right itself does not exist unless created by contract. These arguments persuade us that the Board has adopted an untenable interpretation of § 7 of the Act.
The facts are undisputed. In April, 1969, the Company's security department began an investigation of unauthorized removal of Company property at its Cicero plant. On July 1, management decided to interview nine employees suspected of complicity.*fn1 No decision to discipline any of the nine suspects was made before the interviews began. The Board found, however, that the Company had "decided that during the interviews no union representative would be permitted and that none would be allowed prior to the Company making any preliminary decision. Should preliminary action be taken with respect to any of the individuals, upon request, union representation at that point would be allowed."*fn2
The first employee interviewed (Matthews) did not request representation. However, before the second interview commenced, a Union representative requested that he be permitted to attend the remaining interviews; this request was refused. In addition to the request by the Union representative, which could reasonably be interpreted as a timely request on behalf of all of the unit employees except Matthews, two of the employees (Burnett and Smith) individually asked to have a Union representative present. Each of these requests was also refused.
After the interviews had been concluded, six employees were suspended, two returned to work, and one resigned. Subsequently, five of the six suspendees were discharged, the sixth was suspended for five days, and the "return to work" decision for the other two was confirmed. Later, the Union filed a grievance on behalf of four discharged employees: Matthews (who had made no request for representation); Burnett and Smith (who made individual requests); and Hill (who made no individual request but presumably was covered by the Union's). The disposition of that grievance is not described in the findings.
Two months later the Union filed a charge relating to these four employees with the Board. On January 4, 1971, the complaint issued, describing the interviews and alleging two separate violations of the Act. Paragraph VIII alleged a violation of § 8(a) (1) by interfering with the exercise of § 7 rights of employees Matthews, Burnett, Smith and Hill; paragraph IX alleged a violation of § 8(a) (5) by derogating the Union's status as exclusive collective bargaining representative.
Although the complaint clearly identified two separate theories, at the hearing before the Trial Examiner the parties apparently assumed that both legal issues turned on the factual validity of the general counsel's contention that the real purpose of the interviews was to make a record to support disciplinary action that had already been decided upon, and therefore that the refusal to permit a Union representative to be present violated both § 8(a) (1) and § 8(a) (5) under the Board's then recent decision in Texaco, Inc., Houston Producing Division, 168 NLRB 361.*fn3 The Company argued that Texaco was distinguishable and that this case was controlled by Board decisions finding no unfair labor practice if the interviews from which the Union is excluded are plainly fact-finding in character and precede any decision on discipline.*fn4
The Trial Examiner's characterization of the issues indicated that both the Union's right to be present and the individual employee's right to be represented by the Union depended on the same factual determination. He stated:
"The issue of whether the denial of a union representative during the interviews herein contravenes the Statute concerns itself with the prohibitions contained in Section 8(a) (1) and (5) of the Act, specifically, the interference, restraint, or coercion of employees in the exercise of their right to bargain collectively through a representative of their own choosing and the refusal to bargain collectively with such bargaining representative with respect to wages, hours, and other terms and conditions of employment."*fn5
In his findings of fact, which were accepted by the Board, the Examiner concluded that "no decision to discipline, tentative or otherwise, had been made by the Company prior to conducting the employee interviews. . . ."*fn6 He therefore held that the Company was under no obligation to permit Union representation during the interviews, and neither § 8(a) (1) nor § 8(a) (5) had been violated. He recommended dismissal of the entire complaint.
Although the case was treated by the Hearing Examiner as one involving the right to Union representation in bargaining with the Company -- and therefore with the primary emphasis on § 8(a) (5) and § 9(a) of the Act -- the Board's decision rested on a different legal theory. The Board accepted the conclusion that there was no violation of § 8(a) (5) -- and presumably no impairment of the Company's obligation to treat the Union as the exclusive bargaining representative of the unit employees -- but held that the denial of the requests by Burnett and Smith violated § 8(a) (1). Under the Board's reasoning, the Company properly rejected the Union's request to represent Hill and others, but improperly rejected the requests by Burnett and Smith to be represented by the Union.*fn7
The remedy selected by the NLRB is attacked by both the Union and the Company. The Board ordered the Company to cease and desist "from requiring that any employee take part in an interview or meeting without union representation, if such representation has been requested by the employee and if the employee has reasonable grounds to believe that the matters to be discussed may result in his being subject to ...