Weingarten

1
Weingarten

• Ee has Section 7 right to refuse to be
  interviewed without representative present where
• ee requests union representation
• ee reasonably believes that interview will
  result in disciplinary action
• Employer
• may permit ee the representative
• may deny ee the rep and continue investigation
  without interviewing ee
• need not bargain with rep

2
Rationale for Weingarten Rights

• Right to engage in concerted activities for
  mutual aid and protection
• Union protecting interests of all employees to be
  free from discipline without just cause
• Provides workers full freedom of association
• Redresses imbalance of economic power
• Aids employer by helping to develop a fair and
  objective investigation

3
Weingarten(continued)

• Regarding question of Board decisions that
  suggest no right to representation during an
  investigatory interview, Board may change its
  position on a legal doctrine
• evolution of law appropriate for an
  administrative agency
• Board may learn from experience
• special obligation to explain reasons for change

4
Weingarten Dissents

• Burger
• Board has discretion to reverse a previous
  doctrine, but must explain it
• Powell, w/ Stewart
• Right to discipline fundamental
• Discipline a TCE
• Ee right to representation and matters of
  discipline subject to duty to bargain under
  8(a)(5)

5

• The National Labor Relations Board held in this
  case that respondent employer's denial of an
  employee's request that her union representative
  (emphasis added) be present at an investigatory
  interview which the employee reasonably believed
  might result in disciplinary action constituted
  an unfair labor practice in violation of 8 (a)
  (1) of the National Labor Relations Act, as
  amended, 61 Stat. 140, because it interfered
  with, restrained, and coerced the individual
  right of the employee, protected by (Section) 7
  (emphasis added) of the Act, "to engage in . . .
  concerted activities for . . . mutual aid or
  protection . . . ." 202 N. L. R. B. 446 (1973).
  420 U.S. 251,252- 253 . . .
• First, the right inheres in (Section) 7's
  (emphasis added) guarantee of the right of
  employees to act in concert for mutual aid and
  protection. In Mobil Oil, the Board stated
• "An employee's right to union representation upon
  request is based on Section 7 of the Act
  (emphasis added) which guarantees the right of
  employees to act in concert for 420 U.S. 251,
  257   mutual aid and protection.' The denial of
  this right has a reasonable tendency to interfere
  with, restrain, and coerce employees in violation
  of Section 8 (a) (1) of the Act. 420 U.S. 251,
  256-257