• NLRB Says "NO" to Weingarten Rights for Non-Union Employees
  • August 10, 2004
  • Law Firm: McNees Wallace & Nurick LLC - Harrisburg Office
  • The National Labor Relations Board [NLRB] has resolved a troublesome issue for non-union employers. In its June 2004 decision, IBM Corporation, 341 NLRB No. 148, by a 3-2 vote, the NLRB has overruled four year old precedent that gave a non-union employee the right to have a coworker present during an investigatory interview conducted by the employer, where the employee reasonably believed that the interview could result in disciplinary action.

    You may recall from our 2000 Employer Alert that the right of an employee to have a coworker or representative present at such a meeting had its basis in the seminal United States Supreme Court case of NLRB v. J. Weingarten, 420 U.S. 251 (1975). In Weingarten, the Supreme Court held that, in a union setting, an employee was entitled to have a Union Steward or other Union representative present at such a pre-disciplinary interview. This has commonly been referred to as an employee's "Weingarten rights".

    Twenty five years after Weingarten, by its decision in Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000), the NLRB had extended Weingarten rights to employees in non-union settings. That decision has now been reversed.

    IBM presents welcome relief for non-union employers. In particular, the NLRB recognized that the considerable obligations of an employer to provide a safe workplace, free from harassment and discrimination, require an employer to conduct prompt, efficient and thorough investigations when a complaint is made. In the course of such an investigation, an employer also has significant interests in maintaining confidentiality and privacy of those employees involved. Although similar types of concerns may be present in a union setting, the NLRB reasoned that, in the absence of a certified or recognized union, the presence of a mere coworker in an investigatory interview would not serve the same purpose as a Union representative. For example, a Union Steward has a duty to represent the interests of the workforce and to protect the rights of the employee being interviewed. By contrast, a non-union coworker does not represent the interests of the entire workforce and does not have a duty to maintain confidential information gleaned from an interview. Additionally, a non-union coworker would be unlikely to offer the objective assistance of a Union representative, due to inexperience or perhaps even an emotional connection to the employee being interviewed.

    In IBM the Board held that the potential benefits of having a coworker present in a non-union setting are outweighed by an employer's interest in conducting prompt, efficient and confidential workplace investigations. Therefore, non-union employers will no longer have to honor the request of an employee to have a coworker or representative present during an investigatory interview.

    Although IBM has limited the expansion of Weingarten rights in non-union settings, unionized employers may wish to refresh themselves on what Weingarten rights mean. Weingarten requires that an employer locate a Union Steward or representative upon the request of an employee, if the employer seeks to continue the interview. An employer does not have an affirmative obligation to inform an employee of Weingarten rights, absent a contractual provision requiring it to do so. Additionally, Weingarten rights do not extend to supervisory employees. Finally, Weingarten rights do not permit an employee to insist on having a private attorney present during an investigatory interview.