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NLRB Extends Weingarten Rights to Non-Union Employees

November 5, 2001

In its seminal decision in NLRB v. J. Weingarten, 420 U.S. 251 (1975), the U.S. Supreme Court, affirming a decision of the National Labor Relations Board (the "NLRB"), ruled that an employer violates the National Labor Relations Act (the "NLRA") if it denies an employee's request to have a union representative attend an investigatory interview which the employee reasonably believes might result in discipline or discharge. Over the ensuing twenty-five years, the NLRB has struggled with the question of whether the effect of the Weingarten decision should be limited to unionized employees, or whether employees in non-union workplaces have a corresponding right to the presence of a co-worker at an investigatory interview. Thus, in a 1982 decision, the NLRB extended the Weingarten rights to non-union employees. Materials Research Corp., 262 N.L.R.B. 1010 (1982). Three years later, the NLRB overruled that decision, ruling that Weingarten rights were limited to unionized employees. Sears, Roebuck & Co., 274 N.L.R.B. 230 (1985). Then, in E. I. Dupont & Co., 289 N.L.R.B. 627 (1988), the NLRB stated that its original decision in Materials Research was not necessarily inconsistent with the NLRA, but nevertheless declined to overrule Sears.

On July 10, 2000, the NLRB once again addressed this question and again reversed course. Epilepsy Foundation of Northeast Ohio, 331 N.L.R.B. No. 92 (2000). In a 3-2 decision, the NLRB has now returned to the position originally adopted in Materials Research, and has ruled that the rights set forth in Weingarten apply equally in a non-union setting. Accordingly, a non-union employee now has the right under the NLRA to request the presence of a co-worker at an investigatory interview that the employee reasonably believes might lead to discipline. The NLRB found, in the case before it, that the employer committed an unfair labor practice by discharging an employee in part in retaliation for his insistence on having a co-worker present at the investigatory interview, and it therefore directed that the employee be reinstated with back pay.

The NLRB's rationale in its Epilepsy Foundation decision was straightforward. The Weingarten case itself arose in the context of a unionized workforce. However, the basis for the NLRB's and Supreme Court's decisions in that case was the language of Section 7 of the NLRA which protects the right of employees not only to engage in union activity, but to engage in other "concerted activities for the purpose of mutual aid or protection." The NLRB reasoned that a non-union employee's request to have a co-worker present at an investigatory interview constitutes activity for mutual aid in much the same way as a unionized employee's request for the presence of a union representative: in both situations the observer (whether union representative or co-worker) enhances the employees' opportunity to ensure that discipline is not imposed unjustly.

Epilepsy Foundation is unquestionably a significant decision of which all employers – and particularly non-union employers, who are not accustomed to dealing with the strictures of the NLRA – must take account in the disciplinary process. Nevertheless, it is also important to appreciate the limits of the Weingarten doctrine. First, an employee's right to have a union representative (or co-worker) present arises only in the context of an investigatory interview – an interview conducted for the purpose of gathering facts; Weingarten has no application to other types of meetings, such as where the employer is merely informing the employee of a decision it has already made to impose discipline. Second, the right to have a union representative (or co-worker) present arises only upon the employee's request. Third, if such a request is made, the employer is not required to proceed with the interview; that is, the employer has the right to refrain from conducting the interview altogether and to make its decision regarding discipline without the employee's input and on the basis of other available information. Fourth, if the interview proceeds, the role of the union representative (or co-worker) is only that of an observer and/or spokesperson for the employee; the employer is not required to bargain with the representative nor to permit the representative to disrupt the proper conduct of the interview.

UPDATE: On November 2, 2001, the U.S. Court of Appeals for the District of Columbia Circuit affirmed the NLRB's decision, finding that the decision was a reasonable interpretation of the NLRA (although the Court found that it was improper for the NLRB to apply the new rule retroactively to the employer involved in the case).