Courts Flip-Flop on 'Weingarten' Rights for Nonunion Employees

By Richard S. Rosenberg, Matthew T. Wakefield and Sabrina A. Beldner

In the landmark decision of National Labor Relations Board v. Weingarten, 420 U.S. 251 (1975), the U.S. Supreme Court held that a union-represented employee has a statutory right under the National Labor Relations Act to insist on having a union representative present at an investigatory interview which the employee reasonably believed could lead to disciplinary action. Since then, the National Labor Relations Board has flip-flopped on whether these so-called Weingarten rights apply to nonunion employees as well.

In E.I. Dupont, 289 NLRB 187 (1988), the board said "no" to this question. Twelve years later, they switched positions and said that nonunion employees do enjoy these rights. Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000).

On June 9, 2004, the board once again reversed course. In a 3-2 decision, the board held that nonunion employees do not enjoy Weingarten rights. Thus, a nonunion employer does not violate the National Labor Relations Act by denying a request for representation. IBM Corp., 341 NLRB No. 148 (2004). In doing so, the Board expressly overruled Epilepsy, and returned to prior precedent established in DuPont.

In IBM, an administrative law judge found that IBM violated the National Labor Relations Act where it denied three nonunion employees the right to have a co-employee present during interviews to investigate harassment allegations. The administrative law judge hinged his decision on Epilepsy. A 3-2 Republican majority took up the case in order to allow the board to re-examine the wisdom of extending Weingarten rights to the nonunion sector.

In rejecting Epilepsy, the board declared that while Epilepsy Foundation was a "permissible interpretation of the Act," "national labor relations policy will be best served" by returning to earlier precedent as set in DuPont, which held that Weingarten rights are simply not applicable in a non-union workplace.

The National Labor Relations Board majority articulated several policy considerations in support of its decision.

First, it concluded that where a nonunion employee is involved, a co-employee representative selected on an ad hoc basis does not represent the entire work force, because unlike a union setting, there is no defined group with common interests. Moreover, unlike a union representative, who is bound by a legal duty of fair representation, a co-employee representative lacks any legal duty or personal stake in the immediate situation.

Next, the board stated that one of the primary purposes of Weingarten rights is to place the parties on a "level playing field." In a unionized workplace, the union representative has a collective bargaining agreement and regular dealings with the employer which help redress the perceived power imbalance between the employer and employee.

However, in a nonunion setting, the mere presence of a co-employee does not rectify this imbalance. In the Board's estimation, the proverbial "playing field" cannot be leveled because a co-employee lacks a union representative's "official status" and "knowledge of the workplace and its politics."

The board also highlighted its perception that unlike a union representative, the average co-employee lacks the skills to serve as a group representative. The board noted that a nonunion employee is more likely to select a co-employee to be present at an interview based on a personal connection, as opposed to electing a witness or representative who could take a proactive role in the investigation and help facilitate a favorable resolution on the employee's behalf.

Last, the board expressed concern over confidentiality and privacy implications which are created by a co-employee's presence at investigatory interviews.

The board observed that whereas a union representative has a fiduciary duty to maintain confidentiality regarding ongoing investigations and labor relations matters, no such constraint exists on a co-employee. The majority recognized that actual or potential disclosure of such information could damage or impede ongoing employer investigations, as well as prove harmful to the individual employee.

While the board acknowledged that this same risk exists in the unionized workplace, it noted that a union representative's duty, experience, and ongoing interest in maintaining positive labor relations are strong incentives that help safeguard the confidentiality of such matters.

After weighing these policy considerations, the board concluded that a nonunion employee's interest in having a co-worker present at an investigatory interview is outweighed by the employer's right to conduct confidential, comprehensive, and efficient investigations into employment matters.

The board's two Democratic members, Wilma Liebman and Dennis Walsh, both vigorously dissented, variously calling the board's decision a "step backwards," a sacrifice of due process in the nonunion workplace, and a violation of unorganized employees' Section 7 right to engage in concerted activities for the purpose of mutual aid or protection.

The dissent also urged that the application of Weingarten rights in the nonunion setting should at least be considered on a case-by-case basis.

The majority found no need to do so and rejected the idea in favor of a bright line test for an employers to follow.

The board majority discounted the dissent's due process concerns, stating that alternative dispute resolution processes and whistle-blower statutes provide considerable due process protections in the nonunion workplace. It also rejected the notion that its decision amounts to a denial of Section 7 rights to nonunion employees.

The board explicitly stated that its ruling did not prohibit unrepresented employees from seeking representation by a co-employee, nor did it permit an employer to discipline an employee for simply requesting such representation. Rather, the board declared that its only holding was that employers are not legally obligated to accede to a nonunion employee's request for such representation. The majority also rejected the dissent's suggestion that Weingarten rights be considered on a case-by-case basis as impractical and likely to lead to extensive litigation.

The practical effect of the board's decision in IBM is to permit nonunion employers to once again engage in a one-on-one discussion with employees in connection with disciplinary related matters. Although an employee with a non-union sector may still request representation, the employer cannot be compelled to acquiesce to such a request.

Unions, may opt to view this decision either as an attack on employees or an opportunity for growth. Now that non-union employees no longer enjoy Weingarten rights, entrepreneurial unions will see this decision as providing a selling point for why union membership is a good thing.

For employers, the IBM case means a return to the flexibility previously enjoyed before Epilepsy. Nonunion employers no longer need to be concerned about a possible Weingarten violation as they investigate employee misconduct, nor do they have to concern themselves with the perceived obstacles and problems presented by a co-employee's presence at such investigatory interviews.