When union members in a members-only non-majority union (MONMU) want Weingarten rights

Abstract

This paper explores whether union members in a members-only non-majority union (MONMU) are entitled to a Weingarten right, that is, the right to request a union representative at a workplace investigatory interview that might reasonably lead to discipline. The National Labor Relations Board (NLRB) most recently ruled that only union members are entitled to Weingarten rights, but the right to Weingarten representation of employees in a MONMU has yet to be addressed by the Board. Do members of a non-majority union have a Weingarten right - - or must employees belong to a union that represents a majority of the bargaining unit in order to have the right? The legal status of Weingarten rights for MONMU members who do not have an exclusive majority bargaining representative is analyzed here within the broader context of presently recognized rights for MONMU employees. Significantly, the NLRB’s Division of Advice recently addressed the related issue of whether an employer is obligated to recognize and bargain with a MONMU. Their Memorandum in the Dick’s Sporting Goods case advised that an employer has no duty to bargain with a MONMU, and thus the region dismissed the unfair labor practice complaint. In August 2007, seven unions, with the support of a letter from twenty-five labor law professors, filed a petition for rulemaking at the NLRB seeking adoption of a rule that employers have a duty to bargain with a MONMU for its members -- only in the absence of a presently recognized exclusive majority union. In January 2008, the Change to Win (CTW) labor federation, representing seven other unions, filed a similar petition asking the NLRB to issue the same rule.