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Whither Weingarten?
The National Labor Relations Board (NLRB), charged with interpretation and enforcement of the National Labor Relations Act (NLRA), has often been accused over the years of politicized decision- and rule-making. The NLRB is once again poised to make significant changes in the labor law landscape. The current NLRB is beginning to issue rules and decisions more favorable to organized labor, and its field offices (called “regions,” which are headed by “regional directors”) are issuing complaints expanding the rights of non-union workers. Recent examples include a series of challenges by the NLRB to employer disciplinary action against both unionized and non-unionized employees over social media posts critical of employers and supervisors, and a newly approved rule requiring that employers post in their workplaces a notice of employee rights under the NLRA (something that has never been required in the more than 75 years since the NLRA was enacted). Another policy area in which NLRB watchers believe the Board is poised to make a change is the scope of Weingarten rights. As a result, non-union employers should brush up on Weingarten rights and an employer's obligations when such rights are invoked.
What Are Weingarten Rights?
“Weingarten rights” refers to the rights of a worker to have union or co-worker representation during an “investigatory interview” that the worker reasonably believes may lead to disciplinary action. These rights were initially established in 1975, in the context of a dispute between an employer and a union employee who requested that her union representative be allowed to attend a meeting that she believed might lead to disciplinary action. NLRB v. Weingarten, Inc., 420 U.S. 251 (1975). Since that time, the NLRB has decided that the right of representation includes the right to have a co-worker, rather than a union official, present at an investigative interview under certain circumstances. See Epilepsy Foundation of Northeast Ohio, 331 NLRB 676, 676 (2000) (extending the Weingarten right to have a co-worker present during investigatory interviews to the non-unionized setting); but see IBM Corp., 341 NLRB 1288, 1289 (2004) (expressly overruling Epilepsy Foundation, but preserving right of unionized employees to have a co-worker present). The NLRB has also oscillated, depending upon the political makeup of the Board, between expanding Weingarten rights to include non-union employees, and limiting the right of representation only to union workers.
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