NLRB Reverses Stance on "Weingarten Rights" For Non-Union Workers

Non-union employees no longer have the right to demand a coworker's presence during investigative interviews ("Weingarten Rights") as the result of a June 2004 National Labor Relations Board (NLRB) decision, IBM Corporation v. Schult.  The Board acknowledged that employees who are represented by a union may demand to have such a witness, but held that the benefits of such representation are not present in the non-union setting.  The Board did rule, however, that an employer may not discipline an employee who makes such a request.

The NLRB has now directly reversed its position regarding "Weingarten rights" for non-union workers three times since 1982.  In this most recent denial of the right to a coworker's presence, a sharply-divided Board relied on arguments that it rejected just four years earlier in Epilepsy Foundation of Northeast Ohio, when it granted such rights to non-union employees.  The current ruling may stand the test of time, however, as the Board acknowledged not only the need for employers to conduct confidential investigatory interviews in response to complaints of discrimination or harassment and incidents of workplace violence, but also as a result of security concerns in the aftermath of September 11.  Further, the NLRB made clear that the fundamental differences between union representatives, who represent the collective, and coworkers, who have no obligations to other workers and may lack the skills of a union steward, thereby impeding the investigation rather than facilitating it, formed a foundation for their decision.

PA&C Policy Advisor:

Employers now are free to decide whether they will, or will not, grant the request of a non-union employee who requests that a co-worker be present during an investigatory interview.  Further, even in regard to union employees, an employer has no obligation to inform the employee of his/her Weingarten rights.  Instead, the employee must affirmatively request a witness or representative.  If an employee requests the presence of an attorney, spouse, parent, or anyone else who is not part of the employee's workforce, such a request need not be granted.  Similarly, there has never been a right under the National Labor Relations Act to have a representative present during a disciplinary meeting, i.e., when the employee is informed of his or her discipline.  This is true whether or not the employee is represented by a union.

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