Celebrating 50 Years of Weingarten Rights
50 years ago, on February 19th 1975, the Supreme Court came to a decision in the case of NLRB v. J. Weingarten, Inc. but with that said, how many of you know the story behind your Right to Representation? If you’re like I was when I first learned about it, you’d think it was about a Company who violated the rights of a person named Weingarten, however, I was wrong in that perception. So in celebration of 50 years, I’ll tell you the story thanks to Wikipedia.
In 1972, J. Weingarten, Inc. (Weingarten) operated a chain of food outlets after being founded by Father Hersch Harris Weingarten and Son Joseph Weingarten in 1901. There were two types of food establishments which they operated, stores with lunch counters and establishments with lobby food operations. Weingarten had a policy to allow employees at stores with lunch counters a free lunch, but employees who worked at lobby food operations were not; this distinction and what the actual policy was would lead to the controversy to follow.
Beginning in 1961, Leura Collins was employed as a sales person at Weingarten’s Store No. 2, which was a store with a lunch counter. Then in 1970, she was transferred to Store No. 98, which was a lobby food operation, where she again worked as a sales person. As a Weingarten sales person, Collins was represented under a collective bargaining agreement by Local Union No 455 of the Retail Clerks Union. The RUC would later became part of United Food and Commercial Workers. After a report that Collins was taking money from the cash register, an internal Weingarten investigator spent two days in June 1972 observing the store without the knowledge of Store No. 98's manager. After completing the surveillance, the investigator informed the store manager of his presence and reported that he could find nothing wrong. The store manager then told the investigator that one coworker had reported that Collins failed to pay full price for a box of chicken she had purchased.
The manager and investigator summoned Collins for an interview and questioned her. Collins asked for the presence of a union representative several times but was refused by the manager each time. (This is the importance of what we have now given to us by the outcome of this case.) Upon questioning, Collins explained that she had put four pieces of chicken, which would have cost $1 total, into a larger box, one which could hold $2.98 of chicken, because the store had run out of the $1 sized boxes. To check Collins's story, the investigator left to ask the coworker who had reported her or shall we call this person the Snitch. The Snitch 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 of the differing policies regarding free lunches at lobby food operations (not allowed) versus stores with lunch counters (allowed). Collins once 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) of the employees at Store No. 98 (including the manager) took free lunches because they had never been informed of the policy prohibiting it. When the investigator contacted company headquarters during the interview, the company itself 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. However, 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 Fifth Circuit held that this interpretation of Section 7 was impermissible and refused to enforce the NLRB order. The Fifth Circuit followed the lead of the Seventh and Fourth circuits which had refused to enforce the NLRB's previous decisions in Mobil Oil Corp. and Quality Mfg. Co. respectively. The Fifth Circuit argued that no union presence was necessary in Collins' questioning because the company was not attempting to bargain with her in any way. Additionally, the court argued that requiring a union representative any time the threat of discipline was present would extend the scope of the NLRA far too broadly. The NLRB appealed to the Supreme Court of the United States, which granted certiorari to hear the case.
The Supreme Court, reversing the Fifth Circuit, held that the NLRB decision was appropriate because its interpretation of the NLRA was permissible. The 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 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 Supreme Court reversed and remanded the decision directing the Fifth Circuit to enter a judgment enforcing the NLRB order.
Since Weingarten was decided, the NLRB has extended and retracted its protections several times. While the right announced in the case has never been removed, the NLRB has changed its mind several times as to whether or not the right to have a representative present during investigations applies to non-union workplaces.
This is why we stress our membership to remember their Right to Representation and it is one of those very important Rights that we have as being Union Members. With the NLRB has extended and retracted its protections since 1975, as of 2007, workers who are not union members do not have the right to the presence of a representative during management inquiries.
Never forget that you have the right to have a Steward or Union Representative be present during management inquiries.
The best statement to memorize is,
“If this discussion could in any way lead to my being disciplined, terminated, or affect my personal working conditions, I respectfully request that my Union Representative or Steward be present at this meeting. Until my representative arrives, I choose not to participate in this discussion.”
Thank you for taking the time to read this and I hope you learned a little more about the importance of Unions and your Rights within them.
And also Weingarten’s Supermarket Chain was acquired by Safeway in 1983 where the Weingarten Corperation would only focus on Realty and own the buildings these Supermarkets Leased. Weingarten Realty Investors was bought out in 2021 by Kimco Realty and now the last of the Weingarten name will live on as your Right to Representation.
