NLRB Flip-Flops Again
on ‘Weingarten’ Rights
for Nonunion Employees

03/06/07

In continuing a seesaw battle that has been waged since 1982, The National Labor Relations Board (NLRB) recently held, in a tight 3-2 decision, that a nonunion employee does not have the right to be accompanied by a fellow employee during a meeting that might lead to discipline. The board has now changed its position for the fourth time in the past 22 years on whether so-called “Weingarten” rights apply to nonunion as well as union employees.

Background on ‘Weingarten’ rights

The issue stems from the 1982 U.S. Supreme Court ruling in NLRB v. J. Weingarten Inc. That decision holds that an employer commits an unfair labor practice when it denies an employee’s request for a union representative at such a meeting. On June 9, 2004, the NLRB reversed its position on whether Weingarten rights are extended to nonunion employees as well.

For the past four years, many nonunion employers have struggled to comply with the holding in Epilepsy Foundation that nonunion workers are entitled to have a coworker present during investigatory interviews. By overturning Epilepsy Foundation, the NLRB may ultimately provide welcome relief for nonunion employers.

The IBM harassment case

The latest case involved IBM Corporation and three nonunionized employees. IBM denied the employees’ requests to have a coworker present during investigatory interviews about a letter from a former employee alleging harassment. The employees did not ask to have a coworker present at the initial round of interviews, but all three requested such during the second series of meetings. According to the workers, IBM refused their request and they were later fired.

An NLRB administrative law judge applied the Epilepsy Foundation decision in finding that IBM violated the National Labor Relations Act in denying the employees’ request for the presence of a coworker. IBM, along with dozens of other companies and business organizations, asked the NLRB to overturn its Epilepsy Foundation decision and reverse the judge. By a narrow majority, the board did just that.

The NLRB ruling

The NLRB found that "on balance, the right of an employee to a coworker’s presence in the absence of a union is outweighed by an employer’s right to conduct prompt, efficient, thorough and confidential workplace investigations." Concerning the practical impact of the Epilepsy Foundation ruling, the majority wrote: “Under that case, the nonunion employer is forbidden to speak individually with a solitary employee in connection with the employment-related matter of potential discipline. As we see it, nonunion employers are free to do so. Indeed this is what distinguishes them from unionized employers.”

Stay tuned for possible appeal

Given the continued debate over the issue, and its direct conflict with an appellate court’s ruling granting Weingarten rights to nonunion employees, the NLRB decision stands a good chance of being appealed.

G.Neil will strive to keep you updated on this and other regulatory issues as they happen. Protect your company by adding some invaluable reference guides to your workplace toolbox.

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