As many EPTW readers know, ASE is reporting on the activities of the pro-labor National Labor Relations Board (NLRB) as they change their policy and case decisions tilting the labor playing field in favor of unions and their ability to organize employers. At the end of July this year, the NLRB released an advice memorandum stating that it was evaluating whether to extend what are called Weingarten rights to non-union workers.
Weingarten rights comes from a 1975 U.S. Supreme Court decision National Labor Relations Board v. J. Weingarten Inc. that held union employees have the right, upon request, to union representation (normally with a union steward) in any investigative interview that could possibly lead to disciplinary action of that employee – not an earthshaking position given the rights extended to workers that join a union. But Weingarten rights are not normally given to non-union employees.
The July NLRB memorandum sought advice from its regional offices on whether a recent case involving a non-union worker at Starbucks request to have his/her personal attorney attend a disciplinary meeting was a protected right. Starbucks declined to allow an outside lawyer to attend the employee meeting. The NLRB was looking for a case to overturn its current case (called IBM) precedent that held Weingarten rights do not extend to nonunionized workers.
The NLRB decided the Starbucks case is not a good vehicle to overturn the IBM case but is looking for the right case to pursue its goal of bringing Weingarten rights into non-union shops. Why is this a concern right now? Because this is not the first time these rights have been bestowed upon non-union employees. The NLRB did this back in 2000 where it decided a case ruling where a nonunion employer must allow an employee to have a coworker present at an investigatory interview.
It was subsequently overturned (as is often the case with the NLRB) in the IBM case that reasoned:
- co-workers do not represent the interests of the entire workforce and do not have a legal duty or a personal incentive to act as a union representative;
- the coworker cannot “redress a purported imbalance of power between employers and employees, which union representatives can attempt to redress”;
- coworkers also do not have the skill or knowledge union representatives have in this scenario and lastly;
- a coworker (as opposed to a union representative) may compromise the confidentiality needed in the investigation.
So currently, non-union employees do not have the right to ask for a co-worker or other party to be in any disciplinary meeting, but the NLRB is looking for a good case to make a change. HR professionals that are in non-union employers need to know that one day one of their savvy workers’ rights employee may make the unusual request to have someone join a disciplinary meeting. If you get such a request, be ready to make the call as to whether you want to go along and allow a co-worker to attend the meeting or interview or not.
What may happen if the worker’s request for a co-worker “witness” is denied? In the short run this could be the basis for an NLRB case as well as the potential that the NLRB may in turn, charge that non-union employer with an unfair labor practice and ultimately invalidate a discharge (if that was the outcome of the disciplinary meeting).
If the NLRB does overturn the IBM case, non-union employers will need to review their policies and disciplinary investigation procedures so a non-union worker can request a co-worker in a meeting involving disciplinary action. Some labor experts suggest, under the right conditions, allowing a worker to have a witness in a disciplinary interview or meeting may ultimately help the employer’s employee relations by allowing other employees to witness a fair investigation. But remember to advise both the employee and their witness that the co-worker witness cannot be an advocate for the employee by making arguments against what the employer’s right to conduct the meeting and question the employee.
Fortunately, the above situation is cautionary at this point in time. Until the NLRB decides a case that extends non-union Weingarten rights into the non-union workplace, employers do not have to concede to a request for a representative with the worker that is facing an investigation meeting. But being aware of this pending change to worker rights may help you avoid being a test case. Non-union employers are advised to keep watch as to when the NLRB finds that case and rules on it.
Source: How Weingarten Rights May Operate in A Nonunion Workplace. David Psyzbyiski and Thomas Payne (9/20/2022