The NLRB waffling on Weingarten rights

Abstract

This paper reviews the origin and recent history of Weingarten right cases, analyzes the important labor management issues involved, and argues that the right should apply equally to unionized and nonunion employees. The Weingarten right, as initially affirmed by the Supreme Court in 1975, allows an employee to request the presence of a union representative at an employer's investigatory interview where the employee reasonably believes that the interview might lead to discipline. The right has at times been interpreted by the National Labor Relations Board to permit an employee to request the presence of a co-worker at the interview in the absence of a union. The NLRB's ambivalence regarding the right to have a coworker present in the nonunion context has created uncertainty in the workplace because over the past twenty-three years, the Board has changed its position four times. This paper argues that the Board's recent decision in IBM Corporation, which again withdrew the right from nonunion employees, is not consonant with Section 7 of the NLRA and sound Board precedent. Section 7 provides employees protection for concerted activity such that employees may seek support from each other for mutual aid or protection regardless of the existence of a Section 9 (a) bargaining representative.
Employers have much power in the employment context, particularly where there is no labor organization representing the employees. When employees are without a union's support, or the presence of an impartial witness, they are particularly vulnerable to employer interrogation. The boundaries set by Weingarten do not unduly erode the employer's power to discipline employees because employers retain the right to avoid the interview altogether if an employee requests a representative. The presence of a coworker representative helps to protect the fairness of the process by which the employer may ultimately arrive at the imposition of discipline. As the pendulum swings back and forth on the issue of Weingarten rights for nonunion workers, the American workplace never quite reaches equilibrium on the appropriate process that precedes the imposition of discipline in a nonunion setting, and a vast majority of the American workforce, that of unorganized employees, are unable to count on the valuable safeguard of the Weingarten right.