Anchortank, Inc., Petitioner Cross-respondent, v. National Labor Relations Board, Respondent Cross-petitioner, 618 F.2d 1153 (5th Cir. 1980)

This case presents a novel and interesting question fit for a law school professor who delights in challenging his students with an issue of subtle complexity: Does an employee have a right to union representation at an interview with his employer that is held during the hiatus between the union's challenged victory in a representation election and its subsequent certification as bargaining representative? As our ensuing discussion will demonstrate, when this question is subjected to careful scrutiny, its apparent simplicity quickly disintegrates to reveal an amalgam composed of a considerable number of sub-issues. Our resolution of the questions presented by these constituent parts indicates that the National Labor Relations Board's affirmative answer to the composite query is entitled to affirmance by this court. Our analysis also reveals, however, that the rationale of the Board, while properly applied to this case, paints far too broadly and must therefore be appropriately circumscribed.

The facts of this case are largely undisputed. On January 7, 1977, a representation election was conducted at the Texas City, Texas, facility of petitioner, Anchortank, Inc. The ballot count indicated fifteen votes cast for the union, the Oil, Chemical & Atomic Workers International Union, ten against, and five challenged ballots. The challenged ballots were thus sufficient to affect the outcome of the election. However, on November 4, 1977, the Board issued an order concluding that two of the contested ballots were cast by supervisory personnel. See Anchortank, Inc., 233 N.L.R.B. 295 (1977). Since a ruling on the validity of the three remaining contested ballots could no longer affect the outcome of the election, on November 29, 1977, the Board certified the union.

Petitioner's conduct between the election and the union's certification forms the basis for the alleged unfair labor practices at issue here. Petitioner admitted below¹  that on or about January 20, 1977, it changed its method of computing vacation pay and eliminated a paid holiday, and that on or about January 29, 1977, it decreased the work day from eight and one-half to eight hours, reclassified employees' job classifications, added a fourth or swing shift to the three existing shifts, and promulgated a rule requiring employees to punch in and out for their lunch breaks. Petitioner also admitted that on or about March 25, 1977, it refused to permit an employee, Herbert Charles, to have a union representative present at an investigatory interview which resulted in discipline, and that on or about May 29, 1977, it denied the request of another employee, Yoshinobu Kittley, for the attendance of a union representative at a disciplinary interview which resulted in Kittley's discharge.

The National Labor Relations Board (the Board) found that petitioner violated section 8(a) (1), (5) of the National Labor Relations Act (the Act), 29 U.S.C.A. § 158(a) (1), (5) (West 1973),²  by making unilateral changes in working conditions. The Board further found petitioner violated section 8(a) (1) of the Act by refusing to allow Charles to have a union representative present at an investigatory interview and by denying the request of Kittley to have the presence of a union representative at a disciplinary interview. The Board's order requires petitioner to cease and desist from these unfair labor practices, to bargain with the union, and to reinstate Kittley. The case reaches us on Anchortank's petition for review and the Board's cross-petition for enforcement of this order. We enforce the order with regard to the unilateral changes in working conditions and the refusal to allow the presence of a union representative at Charles' investigatory interview; we vacate and remand the order with regard to the refusal to allow the presence of a union representative at Kittley's disciplinary interview.

Petitioner does not contest the fact that it made unilateral changes in terms and conditions of employment that are subjects of mandatory bargaining. Rather, it argues that it had no duty to maintain the status quo with regard to mandatory subjects until the challenges to the election were resolved and the union was certified. This argument is foreclosed by decisions of this circuit, for we have repeatedly held that an employer who refused to bargain by making unilateral changes in mandatory subjects "on the ground that an election is invalid does so at his own risk; if the election challenge proves fruitless, an order by the Board based on the refusal to bargain will be enforced." NLRB v. W.R. Grace & Co., Construction Products Division, 571 F.2d 279, 282 (5th Cir. 1978); see, e. g., General Electric Co., Battery Products, Capacitor Department v. NLRB, 400 F.2d 713, 717-18 (5th Cir. 1968), cert. denied, 394 U.S. 904, 89 S. Ct. 1012, 22 L. Ed. 2d 216 (1969); NLRB v. Laney & Duke Storage Warehouse Co., 369 F.2d 859, 869 (5th Cir. 1966). The Board properly found that petitioner violated section 8(a) (1), (5) by altering working conditions that are subject to mandatory bargaining.

Regarding its denial of union representation to employees Charles and Kittley at their respective interviews,³  petitioner contends that there is no right to such representation in the absence of a certified union. Stating that "it is impossible to discern just where the Board would draw the line upon an employee's right to union representation in the absence of a certified union," petitioner parades a list of horribles before us:

Would an employee have a right of union representation at an interview where no union activity was afoot at all . . . during an organizational campaign . . . when a union presented authorization cards signed by a majority of employees and demanded recognition . . . after a union filed a petition for election . . . where an employer had won the initial election but challenges were outstanding . . . where an employer had won the election outright . . . when the employee was a member of a union completely unrelated to his present employer?

The Board counters petitioner's argument by asserting that petitioner misconceives the nature of the right to representation. It argues that the right is bottomed in section 7 of the Act, 29 U.S.C.A. § 157 (West 1973),⁴  and "(t)hus, the right to representation belongs to the employee rather than to the union."

Each of these positions contains an element of truth. However, each party also overstates its case, for the parties have ignored the issue crucial to resolution of this dispute: under what conditions will an employee's request for a union representative at an interview constitute a "concerted activit(y) for the purpose of . . . mutual aid or protection" within the meaning of section 7?

It is clear that Charles' and Kittley's requests for union representation would have constituted concerted activities for mutual aid and protection if the requested representative had been another employee in the relevant bargaining unit at Anchortank. Section 7 protects concerted activity by employees, and one employee's request for the presence of another unit employee at an interview is concerted activity. See NLRB v. J. Weingarten, Inc., 420 U.S. 251, 269 & n. 1, 95 S. Ct. 959, 969, 43 L. Ed. 2d 171 (1975) (dissenting opinion) ("The Court today construes (the right to engage in concerted activities for mutual aid or protection) to include union representation or the presence of another employee at any interview the employee reasonably fears might result in disciplinary action"); Oil, Chemical & Atomic Workers International Union v. NLRB, 547 F.2d 575, 592 (D.C. Cir. 1976) ("Section 7 protects the right to act in concert, not merely the right to act in concert with a recognized union"), cert. denied, 431 U.S. 966, 97 S. Ct. 2923, 53 L. Ed. 2d 1062 (1977); NLRB V. Columbia University, 541 F.2d 922, 931 & n. 5 (2d Cir. 1976) ("the protection afforded to concerted activities under the NLRA applies equally to workers in unionized or in non-unionized firms"). See generally NLRB v. Washington Aluminum Co., 370 U.S. 9, 82 S. Ct. 1099, 8 L. Ed. 2d 298 (1962).⁵ 

We cannot dispose of this case on this ground, however, for the record does not reflect whether the requested representative worked at Anchortank. For purposes of analysis, therefore, we must assume that the requested union representative was not an employee of petitioner; the Board's order can be enforced only if employees Charles' and Kittley's requests for the presence of a nonemployee union representative constituted a section 7 concerted activity.⁶ 

If the union had been certified or voluntarily recognized by petitioner when Charles and Kittley requested union representation, their requests would clearly have been section 7 concerted activity. In NLRB v. J. Weingarten, Inc., 420 U.S. 251, 95 S. Ct. 959, 43 L. Ed. 2d 171 (1975), the Supreme Court faced the issue whether an employee's request for the presence of his collective bargaining representative⁷  at an interview which the employee reasonably fears may result in discipline is section 7 protected activity. The Court found that

(t)he action of an employee in seeking to have the assistance of his union representative at a confrontation with his employer clearly falls within the literal wording of § 7 that "(e)mployees shall have the right . . . to engage in . . . concerted activities for the purpose of . . . mutual aid or protection." . . . This is true even though the employee alone may have an immediate stake in the outcome; he seeks "aid or protection" against a perceived threat to his employment security. The union representative whose participation he seeks is, however, safeguarding not only the particular employee's interest, but also the interests of the entire bargaining unit by exercising vigilance to make certain that the employer does not initiate or continue a practice of imposing 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.

Id. at 260-61, 95 S. Ct. at 965 (footnote omitted). The Court also concluded that the existence of the right

plainly effectuates the most fundamental purposes of the Act. In § 1, 29 U.S.C. § 151, the Act declares that it is the goal of national labor policy to protect "the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of . . . mutual aid or protection." To that end the Act is designed to eliminate the "inequality of bargaining power between employees . . . and employers." Ibid. Requiring 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 eliminate, and bars recourse to the safeguards the Act provided "to redress the perceived imbalance of economic power between labor and management."

Id. at 261-62, 95 S. Ct. at 966. The Court thus held that the request for union representation was protected activity.

Weingarten cannot control the resolution of this case, however, for at the time of the requests for union representation, the union had been neither certified nor voluntarily recognized as bargaining representative. To determine whether concerted activity exists when an employee asks for union representation by a union which has won a challenged election,⁸  we must examine afresh the scope of section 7.

The mere fact that an employee has acted alone does not preclude treatment of his action as concerted activity for mutual aid or protection under section 7. See, e. g., Richardson Paint Co. v. NLRB, 574 F.2d 1195, 1207 (5th Cir. 1978); Dreis & Krump Manufacturing Co. v. NLRB, 544 F.2d 320, 328 (7th Cir. 1976). The words "concerted activities" in section 7 constitute a term of art rather than a factual description. Comment, Constructive Concerted Activity and Individual Rights: The Northern Metal-Interboro Split, 121 U. Pa. L. Rev. 152, 153-54 (1972). As a result, the determination whether a single employee's action is protected by section 7 turns on the "interpretation of the purpose and effect of such action and not upon the simple and more limited question of whether there was, in fact, action 'in concert.' " Id. at 154 (footnote omitted). The courts have split, however, over the question whether the action of a single employee must involve both a concerted purpose and a concerted effect to deserve section 7 protection or whether a concerted effect alone will suffice.

NLRB v. Interboro Contractors, Inc., 388 F.2d 495 (2d Cir. 1967), is the leading proponent of the view that an effect on the group suffices to render an employee's action "concerted" for the purpose of section 7. The court in Interboro held that an employee's complaints concerning breaches of a collective bargaining agreement were protected by section 7. In so holding, the court stated that the employee's activity was "concerted" for section 7 purposes whether or not group activity or interest was contemplated: "(W)hile interest on the part of fellow employees would indicate a concerted purpose, activities involving attempts to enforce the provisions of a collective bargaining agreement may be deemed to be for concerted purposes even in the absence of such interest by fellow employees." Id. at 500. The crucial inquiry of this approach is the question whether the employee's activity will have an effect on his fellow employees. See Comment, Constructive Concerted Activity and Individual Rights: The Northern Metal-Interboro Split, 121 U. Pa. L. Rev. 152, 160 (1972).

Mushroom Transportation Co. v. NLRB, 330 F.2d 683 (3d Cir. 1964), is the leading case adumbrating the competing approach to the meaning of "concerted activities." The court in Mushroom held unprotected an employee's advice to other employees relating to breaches of the collective bargaining agreement. In so holding, it did not reject the Board's finding that the employee's "activities in general were directly related to the employees' legitimate interests in terms and conditions of employment and that it was not his prime motive to advance his personal interest . . . ." Id. at 684. Rather, the court held that an activity of a single employee is concerted only if "it was engaged in with the object of initiating or inducing or preparing for group action or that it had some relation to group action in the interest of the employees." Id. at 685.⁹ 

In Weingarten, supra, the Supreme Court seemingly adopted the Interboro approach. In concluding that an employee engages in concerted activity when he seeks union representation at an interview which he reasonably fears may lead to discipline, the Court focused entirely on the effects of such representation on the bargaining unit. See id., 420 U.S. at 260-61 & n. 6, 95 S. Ct. at 965. Significantly, the Court did not discuss whether the employee's action was designed to induce or prepare for group action or had some relation to group action in the interest of the employees, as is required by Mushroom, supra.¹⁰ 

However, for the purposes of our present discussion we need not decide whether the Supreme Court has approved the Interboro approach,¹¹  because, before a representation election is conducted, an employee's request for union representation at an interview does not satisfy even this more lenient view of section 7. We conclude that before a representation election is held, the presence of a union representative does not have the effect on other employees essential to satisfaction of the Interboro standard for concerted activity; thus, the employee's actions in seeking the presence of the representative at that time does not constitute concerted activity.¹² 

Crucial to the Supreme Court's finding of concerted activity in Weingarten, supra, was its conclusion that the participation of the chosen bargaining representative "safeguard(s) not only the particular employee's interest, but also the interests of the entire bargaining unit by exercising vigilance to make certain that the employer does not initiate or continue a practice of imposing punishment unjustly." Id., 420 U.S. at 260-61, 95 S. Ct. at 965 (footnote omitted). In contrast, before a representation election, the union representative does not safeguard the interests of the entire unit; rather, he is in a position to represent only the interests of the particular employee subjected to the interview. Similarly, because the union representative at this point participates in the interview simply on the behalf of the one employee, his presence is not "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." Id. at 261, 95 S. Ct. at 965.

We recognize that even before a representation election is conducted, the participation of a union representative, or any outsider for that matter, will redress the inequality of bargaining power between employer and employee because the employee will not confront his employer alone, see id. at 261-62, 95 S. Ct. at 965-66, and that the representative's presence might also assist the fact-finding process to which the interview is designed. See id. at 262-63, 95 S. Ct. at 966. Nevertheless, these benefits also inure primarily to the employee under investigation. Their ability to affect the entire bargaining unit depends upon the status of the union representative as the unit's collective-bargaining representative who, once familiar with the workplace and its disciplinary problems, is in a position to engage in collective bargaining and the processing of grievances in order to serve all employees. See generally Comment, Union Presence in Disciplinary Meetings, 41 U. Chi. L. Rev. 329, 338-41 (1974). Obviously, before a representation election is conducted, the union representative cannot attain this status.

The situation is radically altered, however, after a representation election is held, and the union is victorious, even if that victory is challenged. At that point, the request of the employee for union representation takes on an entirely different character; the nature of the activity changes. No longer is the employee asking for the participation of a nonemployee who is in a position to represent only the employee's individual interest. Instead, after the union's victory in even a challenged election, the employee's request for union participation is "engaged in with the object of initiating or inducing or preparing for group action (and has) some relation to group action in the interest of the employees." Mushroom, supra, 330 F.2d at 685. After the union has won the election, the employee quite properly perceives his request to be one for the concerted mutual aid and protection of his fellows, for the union then stands in for all the unit employees. See Comment, Constructive Concerted Activity and Individual Rights: The Northern Metal-Interboro Split, 121 U. Pa. L. Rev. 152, 167 (1972); cf. Trailmobile Division, Pullman Inc. v. NLRB, 407 F.2d 1006 (5th Cir. 1969) (presentation of grievances on behalf of other employees by single employee, acting in capacity as union steward, is protected by section 7). Accordingly, under even the more stringent Mushroom test, the employee's request for union representation by a union which has won a challenged election is concerted activity for mutual aid and protection; the request is therefore protected by section 7.¹³ 

Our holding that section 7 grants an employee the right to union representation after the union has won a challenged election¹⁴  does not end our inquiry, for we must still decide whether an employer's denial of an employee's request for representation violates section 8(a) (1).¹⁵  Resolution of this question depends upon a determination whether the employee's section 7 right to union representation outweighs an employer's right to exclude nonemployees from his property.¹⁶  See, e. g., Eastex, supra, 98 S. Ct. at 2515; compare NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 76 S. Ct. 679, 100 L. Ed. 975 (1956), with Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S. Ct. 982, 89 L. Ed. 1372 (1945).

Our discussion must begin with a review of the Supreme Court's decision in Babcock & Wilcox Co., supra. In that case, an employer had refused to permit nonemployee union organizers to distribute union literature on company-owned parking lots. The Board had held that this refusal violated section 8(a) (1) because, applying the rationale of an earlier decision, it found that the employer's action "placed an unreasonable impediment on the freedom of communication essential to the exercise of its employees' right to self-organization." Id., 351 U.S. at 110, 76 S. Ct. at 683, quoting LeTourneau Co. of Georgia, 54 N.L.R.B. 1253, 1262, rev'd, 143 F.2d 67 (5th Cir. 1944), rev'd sub nom. Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S. Ct. 982, 89 L. Ed. 1372 (1945). The Court struck a different balance between the employees' section 7 organizational rights and the employer's property rights:

It is our judgment, however, that an employer may validly post his property against nonemployee distribution of union literature if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message and if the employer's notice or order does not discriminate against the union by allowing other distribution.

Id. at 112, 76 S. Ct. at 684.

We believe that the situation in Babcock & Wilcox is analogous to that existing when an employee asks for the presence of a union representative before a representation election has been conducted. Since an employee always has the right to the presence of another employee at an interview, see section IIA supra, an alternative method of obtaining representation exists which is not disruptive of the employer's property rights. Moreover, before an election has been held, the presence of another employee will better serve both the requesting employee and the bargaining unit than the participation of a nonemployee union representative since the former, but not the latter, will be familiar with the workplace and will represent the interests of employees other than the requesting employee. See pp. 1161-1162 supra. We thus conclude that before a representation election is held, an employer may nondiscriminatorily exclude from his property a union representative who is to represent an employee in an interview, and that this result would obtain even if the employee's request is concerted activity within the meaning of section 7.¹⁷ 

The balance between the employees' section 7 rights and the employer's property rights shifts drastically once the union has been either voluntarily recognized or certified as collective-bargaining representative. See Weingarten, supra.¹⁸  Once the union has attained the status of the exclusive collective-bargaining agent, the alternative to its presence at an interview, the participation of another employee, becomes a far inferior substitute. Since the union is the proper party to the prosecution of grievances and the process of collective bargaining,¹⁹  and because the union is best able to safeguard the interests of all the employees it has been chosen to represent, see pp. 1158-1160 supra, at an interview a union representative is better able to fulfill the functions envisioned in Weingarten than is another employee. Accordingly, when the union has been certified or voluntarily recognized as bargaining agent, the employer's property rights must yield to an employee's request for union representation.²⁰ 

It should be obvious that the situation confronting us, that in which an employee requests the presence of a representative from a union which has won a challenged election but has not yet been certified, falls within the interstices of the two alternatives discussed above. At the time of the requests for its services, the union in this case was not in the position of a union which had yet to engage in a representation election, for the unit employees in petitioner's plant had, pending the resolution of the election challenges, expressed their desire for the union's representation. Nor was the union in the position of a union which had been certified or voluntarily recognized as bargaining agent, for, if the election challenge had been resolved in petitioner's favor, the union would not have been able to claim the status of unit representative.

We believe that this situation is analogous to that in which the employer, in the face of a union's challenged election victory, unilaterally changes conditions of employment that are mandatory subjects of bargaining. In such a situation, prior to resolution of the election challenge, the employer may assert his prerogative to manage his plant without interference at the risk that his conduct will violate section 8(a) (5) if the union has indeed won the election and is later certified. See section I supra. Similarly, when an employee requests the presence of a union representative from a union which has won a challenged election,²¹  the employer may assert his right to exclude nonemployees from his property and conduct an interview after denying the employee's request for union representation at the risk that this conduct will violate section 8(a) (1) if the union has indeed won the election and is later certified.²²  Since the union in this case was certified, petitioner lost its gamble in denying union representation to Charles and Kittley. Thus, if those interviews were the type at which the employees were entitled to representation, petitioner's conduct violated section 8(a) (1). To this issue, we now turn our attention.

We have little difficulty finding that Charles was entitled to union representation at his interview. The allegations of the complaint, admitted by petitioner, were that petitioner "required employee Herbert Charles to attend an investigatory interview at its plant" and "refused to permit employee Herbert Charles to be represented by his Union at the investigatory interview." The parties thus do not dispute that the interview to which Charles was subjected was the type covered by Weingarten, supra, namely an investigatory interview which the employee reasonably believed might result in disciplinary action. See id., 420 U.S. at 252, 95 S. Ct. at 961. Compelling an employee to attend such an interview when his request for union representation has been denied violates section 8(a) (1) of the Act. See id. at 258-59, 95 S. Ct. at 964. Accordingly, we conclude that the Board properly found that petitioner violated section 8(a) (1) by forcing Charles to attend an interview without the presence of a union representative.

1. Our task with regard to the interview which Kittley was required to attend is far less simple, for the parties, the administrative law judge, and the Board have characterized this interview as "disciplinary." Since Weingarten ratified the Board's finding of a section 7 right to union representation only with regard to an "investigatory" interview, we must independently examine whether the functions of a union representative at a "disciplinary" interview render the union's presence at this interview a concerted activity for mutual aid or protection. See id. at 260-62, 95 S. Ct. at 965-66.²³ 

2. In Certified Grocers of California, Ltd., 227 N.L.R.B. 1211 (1977), enforcement denied, 587 F.2d 449 (9th Cir. 1978), the Board held that an employee had the right to union representation at an interview whose sole purpose was to deliver a warning notice to the employee. Purporting to apply the Supreme Court's decision in Weingarten, the Board found that section 7 granted an employee the right to union representation at any interview which he reasonably believed might result in discipline.

The Board has since reversed its field, however, and concluded in Baton Rouge Water Works Co., 246 N.L.R.B. No. 161, (1979-80) Lab.L.Rep. (CCH) P 16,607 (1979), that Certified Grocers was incorrectly decided on its facts. In Baton Rouge Water Works, an employee, Deborah Achord, was called to her supervisor's office to be told that she had been discharged due to unsatisfactory job performance. At this interview, Achord was told "that she had been called in because 'things were not working out' " and that "it would be in the Company's best interest if that was Achord's last day of work." Id., (1979-80) Lab.L.Rep. (CCH) P 16,607 at 30,989. Achord objected that the discharge was unfair and requested the presence of a union representative. After this request was denied by the employer, Achord asked why she was being fired, and the employer explained the reasons for the termination. The interview then ended.

A divided Board²⁴  held that Achord had no section 7 right to union representation at this interview. Overruling Certified Grocers, supra, the Board held that "an employee has no Section 7 right to the presence of his union representative at a meeting with his employer held solely for the purpose of informing the employee of, and acting upon, a previously made disciplinary decision." Id., (1979-80) Lab.L.Rep. (CCH) P 16,607 at 30,990. The Board further explained its holding in the following terms:

We stress that we are not holding today that there is no right to the presence of a union representative at any "disciplinary" interview. Indeed, if the employer engages in any conduct beyond merely informing the employee of a previously made disciplinary decision, the full panoply of protections accorded the employee under Weingarten may be applicable. Thus, for example, were the employer to inform the employee of a disciplinary action and then seek facts or evidence in support of that action, or to attempt to have the employee admit his alleged wrongdoing or to sign a statement to that effect, or to sign statements relating to such matters as workmen's compensation, such conduct would remove the meeting from the narrow holding of the instant case, and the employee's right to union representation would attach. In contrast, the fact that the employer and employee thereafter engaged in a conversation at the employee's behest or instigation concerning the reasons for the previously determined discipline will not, alone, convert the meeting to an interview at which the Weingarten protections apply.

In summary, as long as the employer has reached a final, binding decision to impose certain discipline on the employee prior to the interview, based on facts and evidence obtained prior to the interview, no Section 7 right to union representation exists under Weingarten when the employer meets with the employee simply to inform him of, or impose, that previously determined discipline. To the extent that the Board has in the past distinguished between investigatory and disciplinary interviews, in light of Weingarten and our instant holding, we no longer believe such a distinction to be workable or desirable. It was this distinction which Certified Grocers abandoned, and to that extent we still believe the decision was correct. Thus, the full purview of protections accorded employees under Weingarten apply to both "investigatory" and "disciplinary" interviews, save only those conducted for the exclusive purpose of notifying an employee of previously determined disciplinary action.

Id., (1979-80) Lab.L.Rep. (CCH) P 16,607 at 30,990-91 (footnote omitted).²⁵ 

We agree with the Board's reading of section 7 in Baton Rouge Water Works,²⁶  for we conclude that even under the Interboro standard,²⁷  no concerted activity for mutual aid or protection exists when a union representative is present at an interview "held solely for the purpose of informing the employee of, and acting upon, a previously made disciplinary decision." Id., (1979-80) Lab.L.Rep. (CCH) P 16,607 at 30,990. Since the disciplinary decision has already been made, the union representative cannot safeguard "the interests of the entire bargaining unit by exercising vigilance to make certain that the employer does not initiate or continue a practice of imposing punishment unjustly." Weingarten, supra, 420 U.S. at 260-61, 95 S. Ct. at 965 (footnote omitted). Similarly, because there is no fact-finding at such an interview, the union representative cannot aid the employer and employee by furthering the former's investigation of the incident at issue. See id. at 262-63, 95 S. Ct. at 966. What occurs at such an interview is of interest only to the disciplined employees; it cannot affect the interests of the other unit employees. Therefore, we hold that section 7 does not grant an employee the right to representation at an interview conducted solely to inform the employee of, and acting upon, a predetermined disciplinary decision.²⁸  Accord, AAA Equipment Service Co. v. NLRB, 598 F.2d 1142, 1146 (8th Cir. 1979); Certified Grocers, supra ; Alfred M. Lewis, supra.

3. From the present record, we are unable to conclude whether under Baton Rouge Water Works²⁹  Kittley had a right to the presence of a union representative at the interview which he was compelled to attend. The parties have characterized the interview as "disciplinary." However, that term may simply reflect a predetermined decision to discipline Kittley, or it may reflect the events occurring at the interview. See note 26 supra. To determine whether there was a right to representation at Kittley's interview, we must know what transpired there; the record contains no evidence concerning the occurrences at the interview.³⁰  Accordingly, we must vacate the Board's finding that petitioner violated section 8(a) (1) by requiring Kittley to submit to an interview without representation. We remand the case so that the Board can determine what type of interview was conducted in light of Baton Rouge Water Works and this opinion.³¹ 

The petition for review is GRANTED in PART and DENIED in PART; the petition for enforcement is GRANTED in PART and DENIED in PART; and the case is REMANDED in PART for proceedings not inconsistent with this opinion.