United States: Weingarten Rights and Nonunion Employees: The NLRB Returns to Its Thinking of Old

It was just a few issues ago in the Winter 2003 edition of the RJ&L Employment Law Update that I wrote an article advising employers of the National Labor Relations Board's extension of an employee's Weingarten rights to the nonunion workplace. See "Nonunion Companies Beware the National Labor Relations Act," RJ&L Employment Law Update, Winter 2003. On June 9, 2004, however, the Board overruled itself, returned to its old way of thinking, and held that Weingarten does not extend to employees in a nonunion setting.

Weingarten rights allow union workers to request the presence of a union representative during an investigatory interview by their employer that the worker reasonably believes may result in discipline. The Board first extended Weingarten rights to nonunion workers in 1982, holding that nonunion workers were also entitled to have a coworker present during an employer's disciplinary interview. Three years later, in 1985, the Board did an about-face and held that only unionized employees have Weingarten rights. In 1988, the Board modified its position and clarified that its previous extension of Weingarten rights to the nonunion worker was a permissible, rather than mandatory, interpretation of the National Labor Relations Act, but the Board continued to hold that Weingarten rights did not extend to the nonunion worker. Twelve years later, in the 2000 decision of Epilepsy Foundation, the Board overruled itself to hold once again that Weingarten rights indeed did extend to the nonunion workplace. Coming full circle (again), this year the Board reversed its decision in Epilepsy Foundation and held that employees in a nonunionized workplace are not entitled to representation at a disciplinary interview. IBM Corp., 341 NLRB No. 148 (2004).

So what is going on here? First, the composition of the Board has changed since the Epilepsy Foundation decision. Second, the U.S. Supreme Court has made clear that it is the Board's sole province to determine the need for Weingarten rights in light of changing industrial practices and the Board's cumulative experience in dealing with labor-management relations and the complexities of industrial life. Third, the September 11th terrorist attacks played a substantial role in the Board's decision to reverse course.

• One of the major concerns cited by the Board in IBM Corp. was the "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." For the Board, "the presence of both real and threatened terrorist attacks" gave renewed vitality to the policy considerations supporting its prior rulings which refused to extend Weingarten rights to the nonunion workplace. These policy considerations include:

• coworkers in the nonunion workplace do not represent the interests of the entire workforce as a union does;

• coworkers in the nonunion workplace cannot redress the imbalance of power between employers and employees in the way a union can;

• coworkers in the nonunion workplace do not have the same skills at facilitating an investigatory interview as a union representative;

• the presence of a coworker in a nonunion workplace may compromise the confidentiality of information.

The Board ultimately held that the renewed vigor given these policy considerations by the threat of terrorism weighed in favor of overruling its decision in Epilepsy Foundation, leading the Board to hold that employees in a nonunionized workplace are not entitled to representation at a disciplinary interview.

One unanswered question is how the federal courts will treat the applicability of Weingarten rights to the nonunion workplace. In 2001, the U.S. Court of Appeals for the District of Columbia Circuit affirmed the Board's decision in Epilepsy Foundation, extending Weingarten rights to the nonunion workplace. The U.S. Supreme Court let the D.C. Circuit's decision stand. The Board's recent reversal of itself in the IBM Corp. decision does not, in and of itself, overrule the D.C. Circuit's decision. In affirming Epilepsy Foundation, however, the D.C. Circuit gave deference to a permissible construction of the NLRA by the Board. Given the deference that is traditionally afforded the Board in interpreting the NLRA, it is likely that the federal courts will uphold the Board's decision in IBM Corp. and refuse to interpret the NLRA as extending Weingarten rights to the nonunion worker.

Practical Significance
What the Board's decision in IBM Corp. means for nonunionized employers is that they do not have to honor an employee's request to have a coworker present during an interview with that employee which may result in disciplinary action. However, the way the board has flip-flopped on this issue over the years should be considered when employers make this decision.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.