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Provide Your Non-Union Workers a Witness at Disciplinary Investigations or Break the Law!

Currently, union employees have the right to request a representative be present during investigatory interviews with company management that may lead to discipline. This right is referred to as the Weingarten rule or Weingarten Rights.  Why should you care if your business is not unionized?  Because the National Labor Relations Board’s (the “NLRB” or the “Board”) General Counsel, Jennifer Abruzzo, has made it a priority of her administration to expand these rights to non-union employees.  She is currently looking for opportunities to raise this issue before the Board.

The History of Weingarten Rights 

As with many NLRB policies there often exists a series of back-and-forth decisions whose outcome is determined by the political party then in the White House. Not surprisingly, these ruling are politically driven since the NLRB’s majority is determined by the President’s political party.  This is the case with the application of Weingarten Rights.

The Basics of Weingarten Rights  

Weingarten Rights specifically refer to the right of a union employee to have a representative present at certain types of company meetings. In order for an employee’s Weingarten Rights to be triggered:

  • The meeting must involve a supervisor or an authorized representative of the employer questioning an employee; 
  • The questions being asked must relate to the employee’s work performance or workplace behavior;
  • The employee may be required to explain, defend or admit certain work performance issues or poor workplace behavior; and
  • The investigation could lead to disciplinary action or discharge.

When there is uncertainty regarding whether the meeting concerns disciplinary action, the NLRB will evaluate the “totality of the circumstances,” including actions taken and the company’s previous disciplinary practices.

As stated above, for Weingarten Rights to apply the meeting must be investigatory. If a disciplinary decision has already been made, or if the employee has asked for the meeting to discuss a disciplinary action, then Weingarten does not apply.   

When Must Weingarten Rights Be Initiated? 

Employers do not have to inform unionized workers they have Weingarten Rights.  And no one except the employee can request a representative; it is solely up to the employee to make such a request.

An employer will be in violation of the NLRA if it refuses an employee’s request for a Weingarten representative and it continues to interview the employee. Similarly, if the employer retaliates against an employee for invoking her Weingarten Rights that too is illegal.

What Happens if a Company Violates Weingarten Rights?

In the event a company is found to have violated an employee’s Weingarten Rights the NLRB can: 

  • Order the employer to cease and desist;
  • Order a remedial notice be posted; 
  • Require the employer to interview the employee again with a union member present; and/or
  • Reverse or remedy the discipline action given to the employee as it relates to the Weingarten violation. 

 Weingarten Rights Endorsed by the Supreme Court 

 In NLRB v. J. Weingarten, the Supreme Court established rules for the investigatory interview process for union employees, which consist of the following: 

  1. An employee must make a clear request for union representation before or during the interview. 
  1. Once the employee’s request is made, the employer can: 
  • Grant the employee’s request and give the union representative an opportunity to consult with the employee; 
  • Refuse the request and end the interview immediately; or 
  • Give the employee a choice: end the interview or proceed without representation. 
  1. If the employee request is denied, and the employer elects to continue to ask questions then an Unfair Labor Practice has been committed. 

After the initial decision in Weingarten, Weingarten rights were subsequently  extended to non-union employees in 2000.  However, the extension of these rights was rescinded in 2004, in the case of IBM Corporation and Kenneth Paul Schult, Robert William Bannon, and Steven Parsley, when the NLRB overruled the Epilepsy Foundation decision and returned the application of Weingarten Rights exclusively to union employees.

The Role of the Witness During the Investigatory Meeting

During the investigatory meeting what a Weingarten representative is allowed to say/do is limited.  The representative is entitled to:

  • Be present during the employee interview; 
  • Provide advice to the employee; and 
  • Provide active assistance to the employee. 

Notwithstanding Weingarten, unionized employers still maintain the right to control the investigatory interview. If the representative significantly interferes with the investigatory interview, he/she can be told to leave. The following lists some of the employer’s rights and obligations as established by various NLRB cases. 

  • Can stop union representatives from answering questions for the employees. 
  • Can prohibit recording of the interview. 
  • Can remove a hostile/disruptive representative from an interview; however, it should first ask the representative to stop interrupting/interfering with the process. 
  • Does not have to prematurely terminate an interview because a representative requested it. 
  • Should answer clarifying questions posed by the representative. 
  • Does not have to allow the union representative to instruct the employee not to answer questions. 
  • Does not have to explain its refusal to allow representation and can continue an inquiry without an interview and ultimately come to a disciplinary decision.
  • Does not have to bargain with the representative during the interview. 
  • Does not have to significantly delay the interview in order to allow witness to come to the facility.
  • Does not have to allow a person who has no right to come on the property, to be the witness.  For example, asking an attorney, government official, of non-employee family member is not permitted.  However, employee may ask for a representative who is an officer or business agent of employee’s union.
  • Does not have to allow a fellow employee to act as a representative, if doing so will significantly impair the company’s ability to operate due to the crucial role that employee fills at that time,  

As you can see, employers retain many rights during the interview process.  It is important for management to remember the representative’s role is mainly to listen point out truly confusing questions.  

Weingarten Rights in Non-Union Workplaces 

Currently, Weingarten Rights only apply to unionized employees. However, there have been multiple recent events indicating Weingarten Rights may once again extended to all employees.

First, the August 2021 Advice Memo issued by Jennifer Abruzzo (click to read Memorandum GC 21-04). The memorandum instructs NLRB regions to take cases to trial that will raise the issue of Weingarten Rights in a union-free setting. The Memorandum seeks “Cases involving the applicability of Weingarten principles in non-unionized settings as enunciated in IBM Corp., 341 NLRB 1288 (2004).”

Second, at the rerun union vote at Amazon’s Alabama warehouse union supporters tweeted that a union supporter was denied Weingarten rights during an investigative interview.  A follow up tweet stated, “Time for @NLRB @NLRBGC provide all American workers with Weingarten Rights and the right to due process at work. We demand the National Labor Relations Board immediately overrule IBM Corp., 341 NLRB 1288 (2004).” 

Third, a recent Board decision (click here to read) touches on this issue.  The decision stops short of extending Weingarten Rights to non-union employees, but most labor experts see this decision as a step in that direction.

Not surprisingly, the ruling is in line with a recent Advice Memo (click here to read(the “Starbucks Advice Memo”) whereby the Board acknowledges its desire to extend Weingarten Rights to non-union employers. Nonetheless, the Board found the instant Starbucks’ matter was not the right case to try to effectuate this change.  In that case, the charging party was not only a non-union employee, but was also looking to bring private counsel to her disciplinary hearing, which is beyond the scope of Weingarten Rights even for union employees.

What’s Next? 

Jennifer Abruzzo and the current Board have made clear their pro-union stance and desire to extend the application of Weingarten Rights to non-union employees.  We are monitoring what happens at Amazon closely and looking to see if any other matter is brought before the Board seeking to obtain Weingarten Rights in a union-free setting.

In the interim, it is important for your organization to decide how to handle this if it arises.  At least advise your team that they can delay the interview if such a request is made, in case they are not ready to grant or deny the request.  Be sure you do not unintentionally give employees or unions an opening to file a ULP with the NLRB. If you are faced with this request, we urge you to call us or other competent labor counsel immediately.

Brody and Associates regularly advises management on all issues involving unions, staying union-free, complying with the newest decision issued by the NLRB, and training management on how to deal with all these challenges. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.