GMA SHRM HR Link

National Labor Relations Board Revisits Extension of Weingarten Rights to Non-Union Settings
By Alexis Pheiffer, Quarles & Brady LLP

History of Weingarten Rights

Since 1975, union members have had the right to union representation at any investigatory interview they reasonably believe may lead to disciplinary action against them. See NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975). The right to union representation is often referred to as an employee's Weingarten right in honor of the United States Supreme Court decision granting that right to union employees. Following the Weingarten decision, refusal to grant a union employee's request for representation can lead to a finding of an unfair labor practice.

On July 10, 2002, the National Labor Relations Board ("NLRB") held, in a 3-2 decision, that non-union employees also have Weingarten rights, meaning they have the right to have an employee representative present at any investigatory interview they reasonably believe may lead to disciplinary action against them. Epilepsy Foundation of Northeast Ohio, 331 NLRB No. 92 (July 10, 2000). The NLRB majority based its holding on the fact that the original Weingarten decision was based on Section 7 of the National Labor Relations Act ("NLRA"), which provides that "[e]mployees shall have the right . . . to engage in . . . concerted activities for the purpose of mutual aid or protection. The NLRB, recognizing that non-union employees also have the right to engage in protected concerted activity, held that permitting a representative at investigatory meetings permitted employees to "act together to address the issue of an employer's practice of imposing unjust punishment on employees."

The NLRB's Decision in IBM Corp.

In June of 2004, the NLRB overruled four years of precedent, including its decision in Epilepsy Foundation, and held that Weingarten rights do not extend to non-union employees. IBM Corp., 341 NLRB No. 148 (June 9, 2004). In IBM Corp., the company instituted an investigation after receiving a letter from a former employee containing allegations of harassment. As part of the investigation, the company interviewed the alleged harassers. When the non-union interviewees requested to have a co-worker present during the interview, IBM refused and subsequently discharged the employees. The employees filed charges with the NLRB alleging IBM violated their Weingarten rights, and the administrative law judge agreed. However, the NLRB overruled the administrative law judge and Epilepsy Foundation, reasoning that a change in the law was necessary because of the changing workplace environment, including increasing requirements to conduct workplace investigations and new security considerations raised by incidents of national and workplace violence. To comply with these changes, the NLRB stated that employers must be able to conduct "investigations in a thorough, sensitive and confidential manner." The Board also noted that co-workers, unlike union representatives, do not act on behalf of the entire workforce, and their presence may compromise confidential information.

What Does This Mean For Non-Union Employers?

Non-union employers are therefore free to conduct investigatory interviews with employees one-on-one. Such employers are not required to grant an employee's request to have a co-worker present, even if the employee has a reasonable believe that the investigation will lead to discipline.
Honoring Appropriate Weingarten Rights in The Union Setting

In the Union setting, Weingarten rights are still alive and well. Unionized employers must consider the following:

1. Be prepared for an employee to request to have a union representative present during an investigatory meeting in which the information obtained may be used as a basis for discipline.

2. While an employer does not have the duty to tell an employee about this right or ask if the employee wants a representative, if the employee requests a union representative, the employer's options are to grant the request or forego the meeting. (Typically, foregoing the meeting is not a practical option).

3. If a union representative is present during an investigatory meeting, the employer does not have to "bargain" with the representative, but must allow that person to participate in the discussion and investigation.

4. An employee is only entitled to have a union representative present at an investigatory meeting. Weingarten rights do not give union employees the right to have an attorney or family member present.

REMINDER: NEW FLSA REGULATIONS ON AUGUST 23, 2004

August 23, 2004 remains the effective date for the new Fair Labor Standards Act regulations. A few highlighs of the new regulations include: modification of the current "white collar exemptions," an increased salary basis requirement, addition of safe harbor provisions as protection for improper deductions from salaries of exempt employees, clarification the status of blue collar workers and creation of an exemption for highly compensated employees performing at least one duty found in the executive, professional or administrative positions. Review your job descriptions today! Don't forget that, as of today's date, Wisconsin's Wage & Hour laws will not be changing on August 23, 2004. Employers must comply with whichever law gives employees the most protection (i.e., if Wisconsin law allows an employee to remain non-exempt but the employee would fall under an exemption under the new FLSA regulations, the employer must follow Wisconsin law to enable the employee to keep overtime protection).

Question of the Month:

Question: A unionized employee has filed a grievance against us alleging his termination was not for "just cause." Now, he wants his union representative to examine the personnel file for him. Is this acceptable?

Answer: Yes. An employee involved in a current grievance against his/her employer may designate a representative of his/her union or another designated representative to inspect any personnel records that may have a bearing on the resolution of the grievance. However, the employee must put his/her request for inspection by a representative in writing. Once the employer receives the written request, the representative is allowed to inspect the employee's personnel records in the same manner as the employee would be allowed to inspect his/her own records. For more information on records open to employees, see Wis. Stat. § 103.13.

Have a question you think should be featured as the "Question of the Month" for August 2004? Send your submissions to GMA SHRM.

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