Magazine article Dispute Resolution Journal

Weingarten Rights in the Non-Union Workplace: A Merry-Go-Round of NLRB Decisions

Magazine article Dispute Resolution Journal

Weingarten Rights in the Non-Union Workplace: A Merry-Go-Round of NLRB Decisions

Article excerpt

The National Labor Relations Board (NLRB) has a history of extending and then rescinding the right of unrepresented employees to have a co-worker present during an investigatory interview that could reasonably result in the imposition of discipline. In the latest ride on this merry-go-round of decisions, the NLRB again revoked this right. This decision comes at a time when alternative dispute resolution processes that mirror collective bargaining grievance procedures are being adopted by many non-union employers. The NLRB's latest decision indicates that there are important differences between the rights of employees under union and non-union ADR programs.

Employers are increasingly adopting alternative dispute resolution (ADR) procedures, including binding arbitration, to resolve disputes involving at-will employees-those who do not have the protection of a collective bargaining agreement. Although these procedures may be similar to grievance procedures in a labor-management agreement, the rights of union and non-union employees in otherwise similar circumstances are not the same.

For example, a union employee who reasonably expects to be disciplined by the employer for violation of a work rule has the right to have a union representative present during a pre-discipline interview. This well settled principle was established by the U.S. Supreme Court's decision in the celebrated Weingarten case,1 a case arising under the National Labor Relations Act (NLRA, also known as the Wagner Act). In keeping with the Court's earlier decision in Mobil oil Corporation,2 the National Labor Relations Board (NLRB) held that employees had a right to union representation when requested when there was an exclusive bargaining representative recognized by the employer. However, it is not settled whether this right extends outside the collective bargaining setting to ADR proceedings in the private workplace.

Section 7 of the NLRA is the source of Weingarten rights. It provides, in relevant part. "Employees shall have the right to ... mutual aid and protection...." Both the NLRB and the courts have debated whether the phrase "mutual aid and protection" presupposes the existence of a union. This debate raises questions as to what rights non-union employees would have under corporate grievance procedures. Hence, valuable lessons may be learned from cases applying Weingarten to non-union employees. This article examines the on again, off again extension of Weingarten rights to the non-union workplace for any light it may shed upon the wisdom of incorporating grievance procedures into the nonunion environment. The goal of this historical examination is to spotlight possible problem areas and potential controversies before they arise so that they can be dealt with in the most expeditious way possible.

Weingarten in the Non-Union Workplace

In 1975, the Supreme Court laid to rest, once and for all, any doubt as to whether § 7 of the NLRA required employers to grant the request of union employees to be represented by a union representative during investigative interviews. Since the Weingarten decision, the NLRB has struggled with the propriety of extending this right beyond the union-employer bargaining relationship. In Weingarten, the Supreme Court stated that the "responsibility to adapt the Act to the changing patterns of industrial life is entrusted to the Board."' Seven years after this decision, in 1982, the NLRB ruled in Materials Research4 that the employer violated § 8(a)(l) of the NLRA5 by denying a non-union employee the right to have a co-worker present at a pre-disciplinary interview. Relying on § 7 of the same Act, the Board held that employees (represented or otherwise) "shall have the right... to engage in ... concerted activities for the purpose of mutual aid or protection." It was the Board's position at that time that a literal reading of § 7 provided for mutual aid and protection without regard to the presence of a union. …

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