NLRB v. J. Weingarten, Inc., , was a case decided by the Supreme Court of the United States that ruled that employees in unionized workplaces have the right under the National Labor Relations Act to the presence of a union steward during any management inquiry that the employee reasonably believes may result in discipline.
The manager and investigator summoned Collins for an interview and questioned her. Collins asked for a the presence of a union representative several times but was refused by the manager each time. Upon questioning, Collins explained that she had put four pieces of chicken, which cost $1, into a box large enough to hold $2.98 of chicken because the store had run out of the correct size of boxes for four pieces. To check Collins's story, the investigator left to ask the coworker who had reported her. 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. The investigator returned to the interview, apologized to Collins, and prepared to let her go. Collins then burst into tears and exclaimed that the only thing she had ever gotten from the store without paying was her free lunch.
This prompted renewed questioning from the investigator and manager because, while the company provided free lunches at lunch counters like the one Collins had previously worked at, it did not provide free lunches at food lobby operations. Collins again requested and was refused the presence of a union representative. Based on the questioning, the investigator prepared a statement that Collins owed $160 for lunches but she refused to sign the statement. It was later found that most if not all employees at Store No. 98, including the manager, took free lunches because they had never been informed not to. When the investigator contacted company headquarters during the interview it was uncertain whether the policy against free lunches was even in effect at that store. As a result, the investigator terminated the questioning and the store manager asked Collins to keep the inquiry private.
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). The NLRB applied a right it had recently announced in Quality Mfg. Co. and then clarified in Mobil Oil Corp. 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. 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. Therefore, an employer's refusal of such presence was an unfair labor practice and actionable under the NLRA. 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.
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. 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. 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. 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. As a result, the Court reversed and remanded directing the Fifth Circuit to enter a judgment enforcing the NLRB order.
Justice Powell also prophetically noted that the rationales relied upon by the majority and the NRLB were applicable not only to unionized workplaces, but also to situations where there is no union.
However, the NLRB removed this right from non-unionized workplaces only three years later in the 1985 of Sears, Roebuck & Co. 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. 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. The NLRB further explained that a representative protects the interests not just of the individual employee, but of the entire collective bargaining unit. 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. As a result, employees who are not represented by unions do not have the right to a representative during inquiries.
In the 2001 case of Epilepsy Found. of Ne. Ohio, 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. Then, the NLRB again withdrew the right in the 2004 case of IBM Corp. 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. Therefore, whether or not to extend the right is purely a policy decision for the NLRB to make. 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.
As of 2007, workers who are not union members do not have the right to the presence of a representative during management inquiries. However, since the NLRB has changed its decision on this issue over time, it is unclear whether that will be true in the future.