Facts
In 1972, J. Weingarten, Inc. (Weingarten) operated a chain of food outlets. [1] Weingarten operated two types of food establishments: stores with lunch counters and lobby food operations. [1] Weingarten's purported policy was to allow employees at stores with lunch counters a free lunch, but employees at lobby food operations were not allowed a free lunch; this distinction (and what the actual policy was) would figure in the controversy to follow.
Beginning in 1961, Leura Collins was employed as a sales person at Store No. 2, which was a store with a lunch counter. [1] Then in 1970, she was transferred to Store No. 98, which was a lobby food operation, where she again worked as a sales person. [1] As a Weingarten sales person, Collins was represented under a collective bargaining agreement by Local Union No 455 of the Retail Clerks Union, which later became part of United Food and Commercial Workers. [2] After a report that Collins was taking money from the cash register, an internal Weingarten investigator spent two days in June 1972 observing the store without the knowledge of Store No. 98's manager. [1] After completing the surveillance, the investigator informed the store manager of his presence and reported that he could find nothing wrong. [1] The store manager then told the investigator that one coworker had reported that Collins failed to pay full price for a box of chicken she had purchased. [1]
The manager and investigator summoned Collins for an interview and questioned her. [1] Collins asked for the presence of a union representative several times but was refused by the manager each time. [1] Upon questioning, Collins explained that she had put four pieces of chicken (which cost $1 total) into a larger box (one which could hold $2.98 of chicken) because the store had run out of the four-piece sized boxes. [3] To check Collins's story, the investigator left to ask the coworker who had reported her. [4] The coworker confirmed that the store had run out of $1 size boxes and admitted she did not know how much chicken Collins had placed in the larger box. [4] The investigator returned to the interview, apologized to Collins, and prepared to let her go. [4]
Collins then burst into tears and exclaimed that the only thing she had ever gotten from the store without paying was her free lunch. [4] This prompted renewed questioning from the investigator and manager because of the differing policies regarding free lunches at lobby food operations (not allowed) versus stores with lunch counters (allowed). [4] Collins again requested and was refused the presence of a union representative. [4] Based on the questioning, the investigator prepared a statement that Collins owed $160 for lunches but she refused to sign the statement. [4] It was later found that most (if not all) of the employees at Store No. 98 (including the manager) took free lunches because they had never been informed of the policy prohibiting it. [4] When the investigator contacted company headquarters during the interview, the company itself was uncertain whether the policy against free lunches was even in effect at that store. [5]
As a result, the investigator terminated the questioning and the store manager asked Collins to keep the inquiry private. [6] However, Collins reported the interview to her shop steward and other union representatives. As a result, an unfair labor practice proceeding was brought before the National Labor Relations Board (NLRB). [6]
Judgment
National Labor Relations Board
The NLRB applied a right it had recently announced in Quality Mfg. Co. [7] and then clarified in Mobil Oil Corp. [8] that employees in unionized workplaces had a right under Section 7 of the National Labor Relations Act (NLRA) to the presence of a union representative during any inquiry where the employee's job might be in jeopardy. [9] The NLRB had explained in those decisions that having a union representative present was an exercise of the right to the 'mutual aid and protection' protected by Section 7. [9] Therefore, an employer's refusal of such presence was an unfair labor practice and actionable under the NLRA. [9] As a result, the NLRB found that Weingarten had engaged in an unfair labor practice by refusing Collins a representative and Weingarten appealed to the United States Court of Appeals for the Fifth Circuit. [10]
Fifth Circuit
The Fifth Circuit held that this interpretation of Section 7 was impermissible and refused to enforce the NLRB order. [11] The Fifth Circuit followed the lead of the Seventh and Fourth circuits which had refused to enforce the NLRB's previous decisions in Mobil Oil Corp. [12] and Quality Mfg. Co. [13] respectively. [14] The Fifth Circuit argued that no union presence was necessary in Collins' questioning because the company was not attempting to bargain with her in any way. [14] Additionally, the court argued that requiring a union representative any time the threat of discipline was present would extend the scope of the NLRA far too broadly. [15] The NLRB appealed to the Supreme Court of the United States, which granted certiorari to hear the case. [16]
US Supreme Court
The Supreme Court, reversing the Fifth Circuit, [17] held that the NLRB decision was appropriate because its interpretation of the NLRA was permissible. [18] The Court explained that the NLRB is entrusted with the responsibility to adapt the NLRA to changing times and that as a result courts reviewing its decisions only have the authority to reject its interpretations of the NLRA if those decisions are impermissible under it. [19] This also led to the Court's observation that the NLRB can change its interpretation of the NLRA over time and is not required to comply with its earlier decisions. [20]
The Court held that in this case the NLRB's interpretation of Section 7 was permissible because union representation at employer inquiries constitutes "concerted activity for mutual aid or protection" under the statute. [21] While a particular inquiry might only have implications for one worker, each employee has an interest in the outcome as it establishes rules they will have to follow in the future. [21] The Court further pointed out that having a representative present will help the employee who may be too "fearful or inarticulate" to accurately participate in the investigation as well as the employer by eliciting facts and helping find other sources for the investigation. [22] The Court also pointed out that requiring a union representative at inquiries was consistent with actual labor practice as something already found in many workplaces. [23] As a result, the Court reversed and remanded directing the Fifth Circuit to enter a judgment enforcing the NLRB order. [17] Justice Brennan said the following.
The Board's construction plainly effectuates the most fundamental purposes of the Act. In § 1, 29 U.S.C. § 151, the Act declares that it is a 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." American Ship Building Co. v. NLRB , 380 U. S. 300, 380 U. S. 316 (196). Viewed in this light, the Board's recognition that § 7 guarantees an employee's right to the presence of a union representative at an investigatory interview in which the risk of discipline reasonably inheres is within the protective ambit of the section "read in the light of the mischief to be corrected and the end to be attained.'" NLRB v. Hearst Publications, Inc. , 322 U. S. 111, 322 U. S. 124 (1944).
The Board's construction also gives recognition to the right when it is most useful to both employee and employer. [24] A single employee confronted by an employer investigating whether certain conduct deserves discipline may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors. A knowledgeable union representative could assist the employer by eliciting favorable facts, and save the employer production time by getting to the bottom of the incident occasioning the interview. Certainly his presence need not transform the interview into an adversary contest. Respondent suggests nonetheless that union representation at this stage is unnecessary, because a decision as to employee culpability or disciplinary action can be corrected after the decision to impose discipline has become final. In other words, respondent would defer representation until the filing of a formal grievance challenging the employer's determination of guilt after the employee has been discharged or otherwise disciplined. [Footnote 8] At that point, however, it becomes increasingly difficult for the employee to vindicate himself, and the value of representation is correspondingly diminished. The employer may then be more concerned with justifying his actions than reexamining them.
Chief Justice Burger dissented arguing that the NLRB had not adequately explained and justified its decision to impose the union representative presence requirement. [25] He argued that the Court was not required to accept the NLRB decision because it was not adequately explained. [26] Justice Burger stated that he would remand the case to the NLRB for a fuller explanation of its decision. [26]
Justice Powell argued that the NLRB's interpretation of Section 7 was impermissible because having a union representative present during an investigation is a matter left by the NLRA to the bargaining process. [27] He argued that the NLRA only creates the framework in which employers and unions bargain for employment benefits and does not cover specific benefits like the right to have a union representative present. [28] He further explained that Section 7 only "protects those rights that are essential to employee self-organization" which did not include the right at issue in the case. [28] As a result, he would have affirmed the Fifth Circuit because the right to the presence of a union representative was not covered by Section 7. [29]
Justice Powell also prophetically noted that the rationales relied upon by the majority and the NLRB were applicable not only to unionized workplaces, but also to situations where there is no union. [30]
Significance
Since Weingarten was decided, the NLRB has extended and retracted its protections several times. While the right announced in the case has never been removed, the NLRB has changed its mind several times as to whether or not the right to have a representative present during investigations applies to non-union workplaces. In 1982 in the case of Materials Research Corp., the NLRB extended the right to workplaces that did not have unions. [31] The NLRB reasoned that the right was derived from Section 7 of the NLRA rather than Section 9. [32] While Section 9 covers the exclusive rights of unions to act in the collective bargaining process and are thus only available in unionized workplaces, Section 7 rights are available to employees without a union and thus do not vary based on whether the workplace is unionized. [32] The NLRB further explained that the right to have another employee present during interviews that might lead to discipline helped to reduce the inequality between employees and management as intended by the NLRA. [33] This would also be true regardless of whether a workplace was unionized. [33]
However, the NLRB removed this right from non-unionized workplaces only three years later in the 1985 of Sears, Roebuck & Co. [34] In that case, the NLRB explained that the right to a union representative during inquiries that could lead to discipline was appropriate because a union protects the rights of all workers by safeguarding the terms and conditions for each individual worker. [35] However, when there is no union present the right is inappropriate because employers have the authority to deal with employees on an individual basis and the right to the presence of another employee interferes with that. [35] The NLRB further explained that a representative protects the interests not just of the individual employee, but of the entire collective bargaining unit. [36] As a result, giving employees in non-unionized workplaces is like requiring the employer to deal with the equivalent of a union representative which is not intended by the NLRA. [37] As a result, employees who are not represented by unions do not have the right to a representative during inquiries. [37]
In the 2001 case of Epilepsy Found. of Ne. Ohio, [38] the NLRB again extended the right to non-unionized workplaces, and this decision was affirmed by the United States Court of Appeals for the District of Columbia Circuit. [39] Then, the NLRB again withdrew the right in the 2004 case of IBM Corp. [40] The NLRB noted that either interpretation of the NLRA, extending the right to representation during investigations that may lead to discipline or not doing so, was permissible. [41] Therefore, whether or not to extend the right is purely a policy decision for the NLRB to make. [42] After considering the policy issues on both sides, the NLRB decided that the "employer's right to conduct prompt, efficient, thorough, and confidential workplace investigations" outweighed the employee's right to representation during those investigations and withdrew the right from workplaces without unions. [43]
As of 2007, workers who are not union members do not have the right to the presence of a representative during management inquiries. [44] However, since the NLRB has changed its decision on this issue over time, it is unclear whether that will be true in the future. [44]
The National Labor Relations Act of 1935, also known as the Wagner Act, is a foundational statute of United States labor law that guarantees the right of private sector employees to organize into trade unions, engage in collective bargaining, and take collective action such as strikes. Central to the act was a ban on company unions. The act was written by Senator Robert F. Wagner, passed by the 74th United States Congress, and signed into law by President Franklin D. Roosevelt.
In labor law, a union shop, also known as a post-entry closed shop, is a form of a union security clause. Under this, the employer agrees to either only hire labor union members or to require that any new employees who are not already union members become members within a certain amount of time. Use of the union shop varies widely from nation to nation, depending on the level of protection given trade unions in general.
The rights and duties for employees, labor unions, and employers are set by labor law in the United States. Labor law's basic aim is to remedy the "inequality of bargaining power" between employees and employers, especially employers "organized in the corporate or other forms of ownership association". Over the 20th century, federal law created minimum social and economic rights, and encouraged state laws to go beyond the minimum to favor employees. The Fair Labor Standards Act of 1938 requires a federal minimum wage, currently $7.25 but higher in 29 states and D.C., and discourages working weeks over 40 hours through time-and-a-half overtime pay. There are no federal laws, and few state laws, requiring paid holidays or paid family leave. The Family and Medical Leave Act of 1993 creates a limited right to 12 weeks of unpaid leave in larger employers. There is no automatic right to an occupational pension beyond federally guaranteed Social Security, but the Employee Retirement Income Security Act of 1974 requires standards of prudent management and good governance if employers agree to provide pensions, health plans or other benefits. The Occupational Safety and Health Act of 1970 requires employees have a safe system of work.
In 1975 the United States Supreme Court in the case of NLRB v. J. Weingarten, Inc. 420 U.S. 251 (1975) upheld a National Labor Relations Board (NLRB) decision that employees have a right to union representation at investigatory interviews. These rights have become known as the Weingarten Rights.
The National Labor Relations Board, an agency within the United States government, was created in 1935 as part of the National Labor Relations Act. Among the NLRB's chief responsibilities is the holding of elections to permit employees to vote whether they wish to be represented by a particular labor union. Congress amended the Act in 1947 through the Taft–Hartley Act to give workers the ability to decertify an already recognized or certified union as well. This article describes, in a very summary manner, the procedures that the NLRB uses to hold such elections, as well as the circumstances in which a union may obtain the right to represent a group of employees without an election.
Leura Collins was a member of Retail Clerks Union Local 455 and subject of a workplace theft investigation that resulted in the 1975 Supreme Court of the United States case NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975).
Lechmere, Inc. v. National Labor Relations Board, 502 U.S. 527 (1992), is a US labor law case of the Supreme Court of the United States on union rights and private property rights. It forbids nonemployee union organizers from soliciting support on private property unless no reasonable alternatives exist.
Card check, also called majority sign-up, is a method for employees to organize into a labor union in which a majority of employees in a bargaining unit sign authorization forms, or "cards", stating they wish to be represented by the union. Since the National Labor Relations Act (NLRA) became law in 1935, card check has been an alternative to the National Labor Relations Board's (NLRB) election process. Card check and election are both overseen by the National Labor Relations Board. The difference is that with card sign-up, employees sign authorization cards stating they want a union, the cards are submitted to the NLRB and if more than 50% of the employees submitted cards, the NLRB requires the employer to recognize the union. The NLRA election process is an additional step with the NLRB conducting a secret ballot election after authorization cards are submitted. In both cases the employer never sees the authorization cards or any information that would disclose how individual employees voted.
The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace is a legal treatise written by Charles J. Morris which analyzes collective bargaining under the National Labor Relations Act (NLRA), the federal statute governing most private sector labor relations in the United States. Published in 2005 by Cornell University Press, the text claims that the NLRA guarantees that employees under that Act have the right to bargain collectively through minority unions—but only on a members-only basis—in workplaces where there is not an established majority union, notwithstanding that the present practice and general understanding of the law is that only majority-union employees are entitled to engage in collective bargaining on an exclusivity basis. Contracts resulting from such minority-union bargaining would apply to union members only, not to other employees.
NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938), is a United States labor law case of the Supreme Court of the United States which held that workers who strike remain employees for the purposes of the National Labor Relations Act (NLRA). The Court granted the relief sought by the National Labor Relations Board, which sought to have the workers reinstated by the employer. However, the decision is much better known today for its obiter dicta in which the Court said that an employer may hire strikebreakers and is not bound to discharge any of them if or when the strike ends.
Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, 535 U.S. 137 (2002), is a United States labor law decision in which the Supreme Court of the United States denied an award of back pay to an undocumented worker, José Castro, who had been laid off for participating in a union organizing campaign at Hoffman Plastics Compounds plant, along with several other employees. The case was originally filed against Hoffman by Dionisio Gonzalez, an organizer with the United Steelworkers.
National Labor Relations Board v. Fansteel Metallurgical Corporation, 306 U.S. 240 (1939), is a United States Supreme Court case on labor laws in which the Court held that the National Labor Relations Board had no authority to order an employer to reinstate workers fired after a sit-down strike, even if the employer's illegal actions triggered that strike.
NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292 (1939), is a US labor law case where the US Supreme Court held 5-to-2 that the National Labor Relations Act required decisions of the National Labor Relations Board (Board) to be based on substantial evidence. The Supreme Court overturned a ruling of the Board for not being based on substantial evidence. The Court also held that only the representative of the workers could issue collective bargaining proposals under the law, and that proposals transmitted by a third party did not trigger the Act's protections or duties.
John Cushman Truesdale Jr. was an American lawyer and civil servant who served two terms as executive secretary of the National Labor Relations Board, four terms as a board member, and one term as board chair.
Chamber of Commerce v. Brown, 554 U.S. 60 (2008), is a United States labor law case, concerning the scope of federal preemption against state law for labor rights.
Electromation Inc 309 NLRB No 163 (1992) is a US labor law case related to employer domination of labor organizations.
Epic Systems Corp. v. Lewis, 584 U.S. ___ (2018), was a case decided by the Supreme Court of the United States on how two federal laws, the National Labor Relations Act (NLRA) and the Federal Arbitration Act (FAA), relate to whether employment contracts can legally bar employees from collective arbitration. The Supreme Court had consolidated three cases, Epic Systems Corp. v Lewis, Ernst & Young LLP v. Morris (16-300), and National Labor Relations Board v. Murphy Oil USA, Inc. (16-307). In a 5–4 decision issued in May 2018, the Court ruled that arbitration agreements requiring individual arbitration and prohibiting class action lawsuits are enforceable under the FAA, regardless of allowances set out within the NLRA.
Emporium Capwell v. Western Addition, 420 U.S. 50 (1975), was a United States Supreme Court case. The court reversed and remanded the Court of Appeals ruling. The Supreme Court ruled on the basis of the Civil Rights Act of 1964 and the National Labor Relations Act of 1935 (NLRA).
Sure-Tan, Inc. v. National Labor Relations Board, 467 U.S. 883 (1984) is a US labor law case that resulted in a split decision before the US Supreme Court. By a 7-2 majority, the Court ruled that undocumented immigrant workers were “employees” covered by the National Labor Relations Act (NLRA). However, by a 5-4 majority the Court ruled that the National Labor Relations Board (NLRB) was limited in its remedies for penalizing employers who fired undocumented workers for union organizing in violation of the NLRA. The decision was one of a series limiting the rights of immigrant workers and the power of the NLRB culminating with Hoffman Plastic Compounds, Inc. v. NLRB.
A captive audience meeting is a mandatory meeting during working hours, organized by an employer with the purpose of discouraging employees from organizing or joining a labor union. It is considered a union busting tactic. Critics allege that captive audience meetings are used to intimidate workers and spread misinformation; employees can be fired for failing to participate in the meeting or for asking questions. In the United States, the National Labor Relations Act of 1935 (NLRA) broadly permits captive audience meetings but does not allow them to be held in the final 24 hours prior to a union election. Employers defend the practice as protected free speech; critics view the practice as an infringement on workers' rights not to listen.
