NLRB Again Limits <i>'Weingarten' </i>Rights

According to the Board majority, while the rule in Epilepsy Foundation was a “permissible construction” of the NLRA, national labor policy would be best served by returning to the Board's earlier precedent as set forth in E.I. DuPont & Co., 289 NLRB 627 (1988), which held that Weingarten rights do not apply in non-union settings. The majority stated that “the years after the issuance of Weingarten have seen a rise in the need for investigatory interviews, both in response to new statutes governing the workplace and as a response to new security concerns raised by terrorist attacks on our country.”

Further, the Board noted several key differences between union representation during an interview and representation by a mere coworker in a nonunion workplace. While the presence of a union representative at an investigatory interview protects the interests of the bargaining unit, “a co-worker in a nonunion setting, on the other hand, has no such obligation to represent the entire workforce.” A co-worker in a nonunion workplace “is far less able to 'level the playing field,' for there is no contract from which he derives his authority and he typically has no other matters to discuss with the employer.” The Board also noted, “a union representative is accustomed to administering collective-bargaining agreements and is familiar with the 'law of the shop,' both of which provide the framework for any disciplinary action an employer might take against a union member.” Finally, the Board majority noted that a “critical difference between a unionized work force and a nonunion work force is that the employer in the latter situation can deal with employees on an individual basis.”

Separate Concurring Opinion

Member Schaumber wrote a separate concurring opinion to note that “the right recognized in Weingarten flows from, and is inexorably tied to, the presence of a collective-bargaining agreement and a Section 9(a) representative.” Member Schaumber therefore proposed that the better construction would be to limit Weingarten rights to those situations where the employee requests the presence of an actual Section 9(a) representative at a predisciplinary investigatory interview when a collective bargaining agreement is in place.

The Dissent

In dissent, Members Liebman and Walsh argued that all workers, union-represented or not, have a right to engage in concerted activities for the purpose of mutual aid or protection. The dissent noted that Section 7 rights are not tied to whether the workplace is unionized or not — and it is “hard to imagine an act more basic to 'mutual aid and protection' than turning to a coworker for help when faced with an interview that might end with the employee fired.” Thus, according to the dissent, from the perspective of Section 7, it makes no difference whether nonunion coworkers 1) represent the interests of the entire workforce; 2) can redress the imbalance of power between employers and employees; or 3) have the skills needed to be effective.

Given the continued debate concerning this issue, this decision will undoubtedly be appealed to the federal appellate court.

Continuing a seesaw battle that has been ongoing since the early 1980s, the NLRB recently held in a 3-2 decision that non-union employees do not have a right under the National Labor Relations Act to be accompanied by a fellow employee during a meeting that might lead to discipline.

In IBM Corp., 341 NLRB No. 148 (June 9, 2004), a majority of Chairman Battista and Members Schaumber and Meisburg voted to overrule the Board's decision in Epilepsy Foundation, 331 NLRB 676 (2000), thereby changing the Board's position for the fourth time in the past 23 years on whether so-called Weingarten rights apply to non-union employees.

The Majority Opinion

According to the Board majority, while the rule in Epilepsy Foundation was a “permissible construction” of the NLRA, national labor policy would be best served by returning to the Board's earlier precedent as set forth in E.I. DuPont & Co., 289 NLRB 627 (1988), which held that Weingarten rights do not apply in non-union settings. The majority stated that “the years after the issuance of Weingarten have seen a rise in the need for investigatory interviews, both in response to new statutes governing the workplace and as a response to new security concerns raised by terrorist attacks on our country.”

Further, the Board noted several key differences between union representation during an interview and representation by a mere coworker in a nonunion workplace. While the presence of a union representative at an investigatory interview protects the interests of the bargaining unit, “a co-worker in a nonunion setting, on the other hand, has no such obligation to represent the entire workforce.” A co-worker in a nonunion workplace “is far less able to 'level the playing field,' for there is no contract from which he derives his authority and he typically has no other matters to discuss with the employer.” The Board also noted, “a union representative is accustomed to administering collective-bargaining agreements and is familiar with the 'law of the shop,' both of which provide the framework for any disciplinary action an employer might take against a union member.” Finally, the Board majority noted that a “critical difference between a unionized work force and a nonunion work force is that the employer in the latter situation can deal with employees on an individual basis.”

Separate Concurring Opinion

Member Schaumber wrote a separate concurring opinion to note that “the right recognized in Weingarten flows from, and is inexorably tied to, the presence of a collective-bargaining agreement and a Section 9(a) representative.” Member Schaumber therefore proposed that the better construction would be to limit Weingarten rights to those situations where the employee requests the presence of an actual Section 9(a) representative at a predisciplinary investigatory interview when a collective bargaining agreement is in place.

The Dissent

In dissent, Members Liebman and Walsh argued that all workers, union-represented or not, have a right to engage in concerted activities for the purpose of mutual aid or protection. The dissent noted that Section 7 rights are not tied to whether the workplace is unionized or not — and it is “hard to imagine an act more basic to 'mutual aid and protection' than turning to a coworker for help when faced with an interview that might end with the employee fired.” Thus, according to the dissent, from the perspective of Section 7, it makes no difference whether nonunion coworkers 1) represent the interests of the entire workforce; 2) can redress the imbalance of power between employers and employees; or 3) have the skills needed to be effective.

Given the continued debate concerning this issue, this decision will undoubtedly be appealed to the federal appellate court.