Although the current National Labor Relations Board (NLRB) has not expressly endorsed Weingarten Rights for non-union employees, pundits are predicting it may happen this year.  Weingarten Rights arise from a 1975 Supreme Court case, NLRB v. Weingarten, Inc. In that case, the employee being questioned during a discipline meeting continually asked for her union representative to be in the meeting, and management denied her request. The Supreme Court ruled that she was entitled to that right.

Since the 1980s, the NLRB has gone back and forth on whether Weingarten Rights should apply to non-union workforces; most recently (in 2004) it decided they should not. But the current NLRB has been extremely aggressive applying the National Labor Relations Act (NLRA) to non-union workforces.  If the right case arises, it could overturn its 2004 decision before the end of current administration’s term.

Weingarten Rights specifically deal with the investigation and delivery of disciplinary action. Under today’s NLRB interpretation they apply under the following conditions:

·         The meeting is to investigate some situation, usually a claim that the employee has engaged in some workplace rules violation or other misconduct.

·         The employee has an objectively reasonable fear that he faces discipline of some sort.

·         The employee speaks up and asks for representation.

·         The requested representative is a current, non-supervisory employee, usually a predesignated type of union official such as a shop steward.

In general, there must be an investigation to gather information concerning some sort of policy or rule violation. In an investigation, all parties should be interviewed, including the employee who allegedly violated the rules or policy.  Weingarten Rights attach when that employee is interviewed.

The alleged violating employee must also have a belief that she will be subject to discipline. For example, an employee has been absent a lot, a meeting called to address the absenteeism would give rise to Weingarten Rights. But—and this is a gray line to draw—if the meeting is simply about what is causing the absenteeism (e.g., an FMLA situation or the like), the rights would not be able to be invoked. However, these meetings many times cross the line, and the employer may be considering discipline based on the employee’s response.  Weingarten Rights could apply.

This could even impact situations where employees who are not the bad actors but the witnesses fail to report the situation.  That failure may be a violation of policy.  Therefore, the witness employee may fear being disciplined and invoke his Weingarten Rights.

One of the benefits of the current interpretation of Weingarten Rights is that the employer need not tell the employee of those rights. The employee must know of those rights and invoke them; otherwise they may not apply.  If the employee invokes those rights, the employer must either:

• stop questioning until the representative arrives;

• call off the interview; or

• tell the employee that it will call off the interview unless the employee voluntarily gives up her rights to a union representative (an option the employee will likely refuse.)

As stated, at present non-union employees may not invoke Weingarten Rights. But if the NLRB changes its position, how will it affect non-union employers?

Obviously, HR investigations will be impacted.  But further, the NLRB could impose a requirement for non-union employers to insert a Weingarten Rights policy statement in their handbooks, since a non-union workforce would not have a union available to educate the workforce. 

Most non-union employers will try to restrict the role of the representative to just being present. However, under current NLRB rules the union representative is, in essence, the advocate for the employee. The representative can, among other things, serve as a witness, object to questions, assist the employee when making statements, meet with the employee before the investigatory meeting, and raise extenuating factors. On the other hand, the representative cannot stop the questioning or prevent the employee from answering questions, or turn the interview into a bargaining session.

Forewarned is forearmed: There is a real chance that Weingarten Rights will become available for non-union employees this year. If they do, non-union HR will need to be trained how to deal with these situations. They should begin conferring with their legal counsel now to brainstorm plans for handling situations where Weingarten Rights may be invoked.

Source:  Wilson Elser Moskowitz Edelman & Dicker LLP 12/30/15, AFSCME, Nolo.com