[During an investigatory interview at which an employee of Weingarten was being interrogated about reported thefts at a Weingarten store, the employee requested, but was denied, the presence at the interview of her union representative. The union filed an unfair labor practice charge with the NLRB, which held that the employer had committed an unfair labor practice.
The NLRB issued a ceaseand-desist order; however, the court of appeals reversed, holding that an employee has no need for union assistance at such an interview. The decision was appealed to the Supreme Court.] BRENNAN, J.... The Board's construction that Section 7 creates a statutory right in an employee to refuse to submit without union representation to an interview which he reasonably fears may result in his discipline was announced in its decision and order of January 28, 1972, in Quality Mfg. Co., 195 N.L.R.B. 197....
In its opinions in that case and in Mobil Oil Corp., 196 N.L.R.B. 1052, decided May 12, 1972, three months later, the Board shaped the contours and limits of the statutory right. First, the right inheres in Section 7's 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 which guarantees the right of employees to act in concert for "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.
Thus, it is a serious violation of the employee's individual right to engage in concerted activity by seekinghe assistance of his statutory representative if the employer denies the employee's request and compels the employee to appear unassisted at an interview which may put his job security in jeopardy. Such a dilution of the employee's right to act collectively to protect his job interests is, in our view, unwarranted interference with his right to insist on concerted protection, rather than individual self-protection, against possible adverse employer action. Second, the right arises only in situations where the employee requests representation.
In other words, the employee may forgo his guaranteed right and, if he prefers, participate in an interview unaccompanied by his union representative. Third, the employee's right to request representation as a condition of participation in an interview is limited to situations where the employee reasonably believes the investigation will result in disciplinary action. Thus the Board stated in Quality: We would not apply the rule to such runof-the-mill shop-floor conversations as, for example, the giving of instructions or training or needed corrections of work techniques.
In such cases there cannot normally be any reasonable basis for an employee to fear that any adverse impact may result from the interview, and thus we would then see no reasonable basis for him to seek the assistance of his representative.
Fourth, exercise of the right may not interfere with legitimate employer prerogatives. The employer has no obligation to justify his refusal to allow union representation, and despite refusal, the employer is free to carry on his inquiry without interviewing the employee, and thus leave to the employee the choice between having an interview unaccompanied by his representative, or having no interview and forgoing any benefits that might be derived from one.... Fifth, the employer has no duty to bargain with any union representative who may be permitted to attend the investigatory interview.
The Board said in Mobil, "We are not giving the Union any particular rights with respect to pre-disciplinary discussions which it otherwise was not able to secure during collective bargaining negotiations."...The Board thus adhered to its decisions distinguishing between disciplinary and investigatory interviews, imposing a mandatory affirmative obligation to meet with the union representative only in the case of the disciplinary interview. Texaco, Inc., Houston Producing Division, 168 NLRB 361 (1967).... The Board's holding is a permissible construction of "concerted activities for ... mutual aid or protection" by the agency charged by Congress with enforcement of the Act, and should have been sustained.
The action of an employee in seeking to have the assistance of his union representative at a confrontation with his employer clearly falls within the literal wording of Section 7 that "[e]mployees shall have the right to engage in ... concerted activities for the purpose of ... mutual aid or protection." Mobil Oil Corp. v. NLRB, 482 F.2d 842, 847 (7th Cir. 1973). This is true even though the employee alone may have an immediate stake in the outcome; he seeks "aid or protection" against a perceived threat to his employment security. The union representative whose participation he seeks is, however, safeguarding not only the particular employee's interest, but also the interests of the entire bargaining unit by exercising vigilance to make certain that the employer does not initiate or continue a practice of imposing punishment unjustly.
The representative's presence is an assurance to other employees in the bargaining unit that they, too, can obtain his aid and protection if called upon to attend a like interview.... The Board's construction plainly effectuates the most fundamental purposes of the Act. In Section 1, 29 U.S.C. Section 151, the Act declares that it is a goal of national labor policy to protect "the exercise by workers of full freedom of association, selforganization, 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."
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, 316.... Viewed in this light, the Board's recognition that Section 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 ofthe 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, 124 (1944).
The Board's construction also gives recognition to the right when it is most useful to both employee and employer. 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 context. 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. 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 re-examining them....
The responsibility to adapt the Act to changing patterns of industrial life is entrusted to the Board. The Court of Appeals impermissibly encroached upon the Board's function in determining for itself that an employee has no "need" for union assistance at an investigatory interview. "While a basic purpose of Section 7 is to allow employees to engage in concerted activities for their mutual aid and protection, such a need does not arise at an investigatory interview." 485 F.2d, at 1138.
It is the province of the Board, not the courts, to determine whether or not the "need" exists in light of changing industrial practices and the Board's cumulative experience in dealing with labor-management relations. For the Board has the "special function of applying the general provisions of the Act to the complexities of industrial life," NLRB v. Erie Resistor Corp., 373 U.S. 221, 236, ... and its special competence in this field is the justification for the deference accorded its determination. American Ship Building Co. v. NLRB, 380 U.S., at 316.... Reviewing courts are of course not "to stand aside and rubber stamp" Board determinations that run contrary to the language or tenor of the Act, NLRB v. Brown, 380 U.S. 278, 291....
But the Board's construction here, while it may not be required by the Act, is at least permissible under it, and insofar as the Board's application of that meaning engages in the "difficult and delicate responsibility" of reconciling conflicting interests of labor and management, the balance struck by the Board is "subject to limited judicial review." NLRB v. Truck Drivers, 353 U.S. 87, 96 ... In sum, the Board has reached a fair and reasoned balance upon a question within its special competence, its newly arrived at construction of Section 7 does not exceed the reach of that section, and the Board has adequately explicated the basis of its interpretation.
The statutory right confirmed today is in full harmony with actual industrial practice. Many important collective bargaining agreements have provisions that accord employees rights of union representation at investigatory interviews. Even where such a right is not explicitly provided in the agreement a "wellestablished current of arbitral authority" sustains the right of union representation at investigatory interviews which the employee reasonably believes may result in disciplinary action against him. Chevron Chemical Co., 60 Lab. Arb. 1066, 1071 (1973).... Judgment of Court of Appeals reversed and case remanded with direction to enter a judgment enforcing the Board's order
Case Questions
1. What Section 7 guarantee does the Court stress in its opinion?
2. Does the Court's opinion give an unlimited right to an employee to have a union representative present when the employee is being questioned?
3. What is the Court's primary reason for leaving unfair labor practice determinations to the NLRB rather than the courts?