On Appeal from the National Labor Relations Board; N.L.R.B. Case Nos. 22-CA-15438/406.
Sloviter, Chief Judge, Greenberg and Higginbotham, Circuit Judges.
HIGGINBOTHAM, Circuit Judge
New Jersey Bell Telephone Company ("Bell") appeals from a National Labor Relations Board ("Board") finding that Bell committed two unfair labor practices arising out of circumstances surrounding the five day suspension of one of its employees. In light of the appropriate standard of review of decisions of administrative agencies, we enforce the Board's Decision and Order.
In response to a customer's complaint concerning calls to her unlisted number, a Bell security representative, Lorraine Vasilik, discovered that a Bell customer service representative, Elizabeth Lynch, had accessed that customer's account without authorization.
On November 4, Vasilik and one other security representative interviewed Lynch concerning access to the account to determine whether Lynch had disclosed the unlisted number without authorization. At the outset of that encounter, Lynch asked whether she should have a union representative present.*fn1 Vasilik told her to wait until the security representatives had explained the purpose of the interview, and then make up her mind concerning whether or not she wanted a union representative. Vasilik then proceeded to tell Lynch that they were interested in the account Lynch had accessed. The Administrative Law Judge found "Vasilik did not pause nor ask Lynch whether now that she knew the purpose of the interview, did she wish union representation." Appendix ("App.") at 27 (opinion of the Administrative Law Judge ("ALJ")).*fn2 Instead, Vasilik immediately asked Lynch whether she could tape the interview.*fn3
After Vasilik presented Lynch with evidence of the access, in the form of computer records called "Note Screens," Lynch admitted that she had accessed the account. Lynch denied that she had disclosed the unlisted phone number. However, at the end of the interview, Lynch signed a statement confessing both to accessing the account and to disclosing the telephone number. Lynch initially maintained that she had not disclosed the number, and had signed the statement without realizing that an admission was contained in it. See App. at 28, 31 (Decision of the Board), 111-15 (Lynch Testimony), 279-80 (Tovey Testimony).
Five days after the interview, the same customer complained to Vasilik that she had been called by Lynch. Vasilik made a handwritten report of this conversation which became a part of the Security Report, but neither reported the conversation to local management nor discussed the conversation with Lynch.
On November 16, Lynch's manager, Anne Tovey, prepared a memo reporting the information gathered in the Security Report. Based solely on that memo, Bell's Director of Business Services concluded that a five day suspension was warranted. After Tovey imposed the suspension, Lynch's union, Local 1022, Communications Workers of America ("CWA"),*fn4 filed a grievance on Lynch's behalf. CWA requested full copies of both the Security Report and the Note Screens to facilitate its processing of the grievance. In response to this request, Tovey gave CWA only the second of two pages of the Note Screens. Tovey considered the Security Report confidential, and the first page of the Note Screens irrelevant to the processing of the grievance.
After Bell denied further CWA requests for the withheld information, unfair labor practice charges were filed with the Board. The charges alleged that the denial of a union representative during the November 4 interview violated Section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. §§ 157-160 ("NLRA" or "Act"), and that Bell's refusal to furnish the requested information violated Sections 8(a)(1) and (5) of the Act.
The Board unanimously concluded that Bell violated Lynch's Weingarten right to have a union representative present during an investigatory interview. See infra p.148 (discussing National Labor Relations Board v. J. Weingarten, Inc., 420 U.S. 251, 43 L. Ed. 2d 171, 95 S. Ct. 959 (1974)). A majority of the three member panel also concluded that Bell violated Section 8(a)(5) of the Act by refusing to provide page one of the computer Note Screens and the security investigative report.
The first issue for our consideration is the appropriate standard of review of Board determinations. The Board contends that the issue of whether Lynch made an adequate request for union representation during the interview is purely a question of fact, and therefore should be considered conclusive if it is supported by "substantial evidence on the record as a whole." 29 U.S.C. § 160(e). We do not entirely agree. We consider the question as one of mixed law and fact. Accordingly, we hold that the Board's finding that Lynch actually asked whether she should have union representation is one of fact. We also hold that that finding is supported by substantial evidence in the record.
The issue of whether Lynch's inquiry was sufficient to trigger Weingarten rights, see infra [Slip Op.] p. 9, constitutes a legal question concerning the construction of the NLRA which we deem is more appropriately viewed as a question of law. Similarly, the Board's conclusion that Bell violated the Act by refusing to provide CWA with requested information also concerns the Board's construction of the Act.
Our review of the Board's construction of the National Labor Relations Act is guided by Chevron, U.S.A., Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). See American Hospital Association v. National Labor Relations Board, 113 L. Ed. 2d 675, 111 S. Ct. 1539, 1544 (1991); National Labor Relations Board v. United Food & Commercial Workers Union, 484 U.S. 112, 108 S. Ct. 413, 421, 98 L. Ed. 2d 429 (1987); see also Pension Benefit Guarantee Corp. v. LTV Corp., 496 U.S. 633, 110 L. Ed. 2d 579, 110 S. Ct. 2668 (1990) (citing Chevron as "set[ting] forth the general principles to be applied when federal courts review an agency's interpretation of the statute it implements"). Chevron provides a two-step inquiry. First, we must determine whether Congress has "spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter . . . ." 467 U.S. at 842. Second, "if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. at 843; see also Department of the Navy v. Federal Labor Relations Authority, 836 F.2d 1409, 1410 (3d Cir. 1988) (acknowledging the Chevron standard, but limiting deference dictated by Chevron to an agency's interpretation of its own organic statute); United States Department of the Navy v. Federal Labor Relations Authority, 840 F.2d 1131 (3d Cir. 1988) (same).
When the Board's construction of the Act is one permissible interpretation out of many, this court is not free to substitute its preference for that of the Board. See Chevron, 467 U.S. at 843 n.11. Accordingly, under Chevron, the Supreme Court has "traditionally accorded the Board deference with regard to its interpretation of the NLRA as long as its interpretation is rational and consistent with the statute." United Food and Commercial Workers Union, 108 S. Ct. at 421. In addition, we must review the consistency with which the Board has applied the particular rule at issue. See id. at 421 n.20; see I.N.S. v. Cardoza Fonseca, 480 U.S. 421, 446 n.30, 94 L. Ed. 2d 434, 107 S. Ct. 1207 (1987) ("An additional reason for rejecting the INS's request for heightened deference to its position is the inconsistency of the positions the BIA has taken through the years."); cf. West v. Bowen, 879 F.2d 1122, 1134 (3d Cir. 1989) ("We have often found consistency or lack thereof in an agency interpretation to be crucial in determining the degree of deference to be afforded that interpretation.").*fn5
Thus, when reviewing Board orders, the court must address three discrete issues. First, the court determines whether the NLRA provides a clear rule to be applied in the case, and if so, whether the Board complied with the Act. If no clear rule is provided, the court then determines whether the NLRA permits the Board order that is the subject of the appeal. Finally, if the Board order is permissible, ...