EMPLOYMENT LAW

Know Your Employees' Weingarten Rights

National Labor Relations Board extends Weingarten rights to non-union employees, for now.

October 2000

By Andrea K. Johnstone and Anne G. Scheer*

On July 10, 2000, the National Labor Relations Board (NLRB) held that the National Labor Relations Act (the Act) gives non-union employees the right to have a co-employee of their choice present at any investigative meeting/interview which the employee reasonably believes might result in disciplinary action. The NLRB based its decision on Section 7 of the Act, which gives all employees the right "to engage in concerted activities for the purpose of mutual aid or protection."

Unionized employees have long enjoyed the right to have a union representative present at any investigative meeting/interview, which the employee reasonably believes might lead to disciplinary action. This has come to be known in union settings as an employee's Weingarten right after a 1975 United States Supreme Court case, NLRB v. Weingarten, in which this right was first recognized.

An appeal of the NLRB's decision to extend Weingarten rights to non-union employees has been filed. However, until this decision is reversed or modified, it remains binding on employers of non-union individuals. And, although no case law has yet developed for non-union employers on this issue, it is likely that such rulings will follow the Weingarten line of cases which have held:

• An employee only has the right to have a co-worker (or union representative) present when the employee reasonably believes the investigative meeting/interview will result in disciplinary action.
  
  
• An employer has no obligation to advise a union employee of the right to have a union representative present. However, it is unclear as to how the court may rule in a non-union setting.
  
  
• A co-worker (union representative) must be allowed to speak at the interview/meeting.
  
  
• The employee, not the employer gets to choose the co-worker who will be present. If the co-worker chosen is not available, the employee must be allowed to choose another co-worker to be present. However, the employer cannot be unreasonably delayed in conducting the requested interview/meeting while waiting for the availability of a co-worker.
  
  
• An employer can take disciplinary action without an investigative interview/meeting with an employee, and a meeting simply informing an employee of disciplinary action does not trigger an employee's right to have a co-worker present.
  
  
• A union can bargain away employees' Weingarten right. And, a union or non-union employee can, at the time of an interview/meeting, give up their right by failing to request or affirmatively waiving the presence of a co-worker/union representative. It is unclear, but appears that courts will allow a non-union employee to prospectively give up this right at hire.
  
  
• Supervisors are not covered by Section 7 of the NLRA and, thus, are not included within this ruling.

If you have any questions concerning application of this case to a specific situation, please contact Attorney Anne G. Scheer.

Copyright 2000. This article originally appeared in BIA Report, October 2000.

*Anne G. Scheer is admitted in New Hampshire.

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