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, ]... 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, ]