NLRB v. Weingarten

NLRB v. Weingarten (official style: National Labor Relations Board v. J. Weingarten, Inc.) was a 1975 United States Supreme Court case involving labor law.

The case arose out of a policy involving a grocery store chain located in the Southern United States, which had a somewhat confusing policy regarding free meals provided to its employees: employees who worked at stores with lunch counters were permitted a free meal daily, while employees who worked at stores with only lobby food operations were not permitted such. However, the policy was not always made clear to employees, or managers for that reason.

An employee, Leura Collins, worked at a store with a lobby food operation, and who was represented by a union. Collins was accused of taking money from the store's cash register; an internal investigator looked into the matter but never saw anything wrong. The store manager replied that Collins had failed to pay for a full box of chicken purchased, whereupon Collins was called in for questioning. After requesting to have a union representative present several times (and denied each time), she replied that she purchased four pieces of chicken but used the larger box because the store had run out of smaller ones, a statement which was proven true.

The investigator then returned to apologize to Collins and was about to let her go, whereupon she burst into tears and stated that the only thing she ever took from the store without paying for it was the free lunch. This prompted renewed questioning (due to the differing free lunch policies); at that point Collins requested a union representative be present but was denied. The investigator learned that most employees -- including the store manager -- took free lunches because the company had never told them about the policy in effect at that store; in fact even company headquarters was uncertain whether which policy was applicable.

The investigator terminated questioning, took no further action, and the store manager asked Collins to keep the matter private. However, she reported the incident to her shop steward and other union representatives, who then filed an unfair labor practice against the company.

The NLRB ruled that the company had engaged in an unfair labor practice by denying Collins the right to a union representative during the interview, stating that under Section 7 of the National Labor Relations Act, an employee in a unionized workplace had the right to a representative in any case where the employee's job may be in jeopardy. However, the Fifth Circuit Court of Appeal overturned the NLRB's ruling, stating that the NLRB's interpretation of Section 7 was too broad.

The United States Supreme Court agreed to hear the NLRB's appeal and reversed the Fifth Circuit in a 6-3 decision. Justice Brennan (writing for the majority, which included Justices Douglas, White, Marshall, Blackmun, and Rehnquist) stated that 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. Chief Justice Burger dissented, stating that the NLRB had not adequately explained and justified its decision to require union representation. Justice Powell (joined by Justice Stewart) also dissented separately, stating that this was a matter for the bargaining process.

The case would ultimately lead to what are known as Weingarten rights. The Weingarten rights apply during any investigative interview involving an employee in a unionized workplace, and are as follows:

1. The employee must make a clear request for union representation before or during the interview. The employee cannot be punished for making this request.
2. After the employee makes the request, the employer must choose from among three options: 1) grant the request and delay questioning until the union representative arrives and (prior to the interview continuing) the representative has a chance to consult privately with the employee; 2) deny the request and end the interview immediately; or 3) give the employee a clear choice between having the interview without representation, or ending the interview.
3. If the employer denies the request for union representation, and continues to ask questions, it commits an unfair labor practice and the employee has a right to refuse to answer. The employer may not discipline the employee for such a refusal.

The Weingarten rights, however, do not apply at companies which are non-union.