NLRB changes its mind about non-union Weingarten rights

In June 2004, the National Labor Relations Board overruled its 2000 decision in Epilepsy Foundation of Northeast Ohio and held that employees not represented by a union are not entitled to the presence of a co-worker during investigative meetings/interviews that the employee reasonably believes might result in disciplinary action.

This entitlement, known as a Weingarten right, has long been enjoyed by unionized employees, but had only been extended to non-union employees by the NLRB in 2000 by the NLRB’s decision. Prior to the decision in Epilepsy Foundation, non-union employees did not have Weingarten rights.

Without Weingarten rights, a non-union employer is now free to deny an employee’s request for co-worker presence during an investigative meeting/interview and may lawfully require the employee to continue the interview without the presence of the requested witness.

Employers, however, should still proceed with caution.

First, employers should not confuse this retraction of non-union Weingarten rights with any other rights non-union employees have under the National Labor Relations Act .

In particular, under Section 7 of the NLRA, non-union employees are entitled to “engage in concerted activities for the purpose of … mutual aid or protection. …” This includes an employee’s right to seek co-worker representation/attendance at a meeting with the employer, even though a non-union employer need not grant the request. The employee’s request is considered protected activity under the NLRA for which he or she may not be disciplined.

Accordingly, employers need to be careful as to how they treat an employee and/or document any employee discipline in the time period following an employee’s request for co-worker presence at an investigatory interview/meeting.

For example, in a 2004 case involving Wal-Mart Stores Inc., Wal-Mart was charged with unfair labor practices in violation of the NLRA. The complaint alleged that Wal-Mart had violated a non-union employee’s rights by firing him for insisting on an independent witness during an investigatory meeting. The employer, however, claimed he was fired for refusing to participate in the investigation once his request had been denied and for other unacceptable conduct.

The NLRB stated that the lawfulness of the employee’s discharge was dependent on whether the employee had been discharged for his refusal to participate in the investigation or whether he had been discharged for requesting the presence of a co-worker during the investigative meeting/interview, and remanded it for a decision on that issue.

On remand, if it is determined that the employee was discharged for
requesting the presence of a co-worker, Wal-Mart may be in violation of Section 8(a)(1) of the NLRA.

Finally, given the volatile history of Weingarten rights vis-à-vis non-union employees, the NLRB’s current position that non-union employees are not entitled to them is not guaranteed. Employers should make sure they revisit this issue regularly.

Employers also are encouraged to consult with legal counsel as appropriate to address Section 8(a)(1) issues and employee requests to have a “witness” in meetings with their employer.

Laurel Van Buskirk practices labor and employment law at the Concord law firm of Gallagher Callahan & Gartrell, P.A.

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