holding that under the National Labor Relations Act of 1935, 29 U.S.C. § 151-169 , a union member is entitled to representation at an interview by management, where the employee reasonably believes that it will lead to disciplinary action
How later courts described this case
- holding that under the National Labor Relations Act of 1935, 29 U.S.C. § 151-169 , a union member is entitled to representation at an interview by management, where the employee reasonably believes that it will lead to disciplinary action
- holding that NLRA § 7 allows an employee to insist on the presence of a union representative at employer’s investigatory interview when plaintiff reasonably believes the interview will result in discipline
- holding that an employer commits an unfair labor practice by compelling an employee to attend an investigatory meeting that could lead to discipline without allowing the employee to bring a union witness
- explaining representative’s presence *66 safeguards interests of the union and assures other employees in the bargaining unit that they can also obtain representative’s aid if called to a like interview
Written by the judges who cited it.
The opinion
Mr. Chief Justice Burger,
dissenting. *
Today the Court states that, in positing a new § 7 right for employees, the “Board has adequately explicated the basis of its interpretation.” Ante, at 267. I agree that the Board has the power to change its position, but since today’s cases represent a major change in policy and a departure from Board decisions spanning almost 30 years the change ought to be justified by a reasoned Board opinion. The brief but spectacular evolution of the right, once recognized, illustrates the problem. In Quality Mfg. Co., 195 N. L. R. B. 197, 198 (1972), the Board distinguished its prior cases on the ground, inter alia, that “none of those cases presented a situation where an employee or his representative had been disciplined or discharged for requesting, or insisting on, union representation in the course of an interview.” Yet, soon after- *269 wards the Board extended the right without explanation to situations where no discipline or discharge resulted. Mobil Oil Corp., 196 N. L. R. B. 1052 (1972); J. Weingarten Inc., 202 N. L. R. B. 446 (1973).
The tortured history and inconsistency of the Board’s efforts in this difficult area suggest the need for an explanation by the Board of why the new rule was adopted. However, a much more basic policy demands that the Board explain its new construction. The integrity of the administrative process requires that “[w]hen the Board so exercises the discretion given to it by Congress, it must 'disclose the basis of its order’ and 'give clear indication that it has exercised the discretion with which Congress has empowered it.’ Phelps Dodge Corp. v. Labor Board, 313 U. S. 177, 197 .” NLRB v. Metropolitan Ins. Co., 380 U. S. 438, 443 (1965). Here, there may be very good reasons for adopting the new rule, and the Court suggests some. See ante, at 260-261; 262-264; 265 n. 10. But these reasons are not to be found in the Board’s cases. In Metropolitan Ins. Co., supra, at 444, we made it clear that “ 'courts may not accept appellate counsel’s post hoc rationalizations for agency action.’ ” The Court today gives lip service to the rule that courts are not “ 'to stand aside and rubber stamp’ ” Board determinations. Ante, at 266.
I would therefore remand the cases to the Court of Appeals with directions to remand to the Board so that it may enlighten us as to the reasons for this marked change in policy rather than leave with this Court the burden of justifying the change for reasons which we arrive at by inference and surmise.
[This opinion applies also to No. 73-765, International Ladies’ Garment Workers’ Union, Upper South Department, AFL-CIO v. Quality Manufacturing Co. et al., post, p. 276.]