NLRB Extends Weingarten Rights to Unrepresented Employees

The National Labor Relations Board (NLRB) has ruled that non-unionized employees have the right to request a co-worker´s presence at an investigative interview if the employee reasonably expects to be disciplined.   A copy of the NLRB Decision and Order, Epilepsy Foundation of Northeast Ohio, 331 NLRB 92, 7/10/00, will be available between July 14, 2000 and July 21, 2000 at:

Weekly Summary of NLRB Cases www.nlrb.gov/ At the NLRB website, click on the Weekly Summary button.

A Brief History of Weingarten Rights

The Supreme Court decision in NLRB v. J. Weingarten (1975) gave employees the right to request that a union representative attend a meeting that was potentially disciplinary in nature.   A unionized employee´s right to the presence of a union representative in an invesitgatory interview came to be known as the "Weingarten right".   In this seminal decision the court held that the employer violated Section 8(a)(1) of the National Labor Relations Act by denying an employee´s request that a union representative be present.

The NLRB addressed this issue of representation in later cases.   In the Materials Research Corp. decision, 262 NLRB 1010 (1982), the Board found that the Weingarten right applied to a request for a coworker´s presence at an investigatory interview in a nonunion setting.   In this case the Board found that an employee seeking protection did not have to be an employee represented by a union.

The Materials Research Corp. decision was overruled in the Sears, Roebuck & Co. decision, 274 NLRB 230 (1985), where the Board stated that extending Weingarten rights to nonunionized employees infringed upon an employer´s right to deal with employees on an individual basis when they are not unionized.  

In the next relevant case, E.L. Dupont & Co., 289 NLRB 627 (1998), the Board held that Weingarten rights were not applicable in nonunion settings, but left an interpretive loophole in the statute saying that it "might be amenable to other interpretations".   In this decision the Board emphasized that an employee representative who was untrained and did not represent the interests of all the employees in the workplace would be of little value to an employee in a disciplinary interview.

The Decision was Divided

In the Epilepsy Found. decision and order, Chairman John Truesdale and members Sarah Fox and Wilma B. Liebman cited the principles laid down by Weingarten, overruled the Board´s decision in Dupont and returned to the principles in the Materials Research Corp. decision.   The introduction to the Epilepsy Found. decision states that, "the principles set forth by the Supreme Court in NLRB v. J. Weingarten should be extended to employees in nonunionized workplaces, to afford them the right to have a co-worker present at an investigatory interview which the employee reasonably believes might result in disciplinary action".   The other two members, Peter J. Hutgen and J. Robert Brame III, dissented in part from the decision.

Facts of the Case: Epilepsy Foundation of Northwest Ohio and Arnis Borgs and Ashraful Hasan

Borgs and Hasan, employees of the Epilepsy Foundation, sent a memo to their supervisor requesting that he no longer supervise their project.   A copy of the memo was also sent to the executive director of the foundation.   When both the director and the supervisor requested a meeting with Borgs, Borgs felt intimidated and refused, offering instead to meet with just one of them. When this was refused he requested that his fellow worker, Hasan, accompany him to the meeting. This was also refused.   Borgs´ behavior was judged to be gross insubordination and the next day he was given a letter of termination for his refusal to meet with his superiors.

A NLRB administrative judge found that Borgs was fired for his refusal to meet alone with his supervisor and director.   Citing Dupont, the judge held that employees in a nonunion workplace do not have the right to a fellow worker´s attendance during a disciplinary meeting.   He found that Borg had no statutory right to condition the meeting upon his coworker´s attendance and therefore the discharge of Borgs did not violate Section 8(a)(1) of the National Labor Relations Act (NLRA)

The Turn-Around

In the Materials Research Corp. decision, the Board interpreted the basis for Weingarten rights as grounded in the language of Section 7 of the NLRA, where it states that employees have the right to engage in "concerted activities for the purpose of mutual aid or protection".   The Epilepsy Found. decision returns to the principles of this case stating that "this rational is equally applicable in circumstances where employees are not represented by unions".

Dissenting Members Arguments

Member Peter Hutgen dissented from the decision saying that the Board is taking away a nonunion management´s right to interview employees on an individual basis.   Hutgen went on to say that, "by grafting the representational rights of the unionized setting onto the nonunion workplace, employers who are legitimately pursuing investigations of employee conduct will face an unknown trip-wire placed there by the Board".

Member J. Robert Brame, also dissenting in part, said that nonunion employees should have the right to request a coworker at their interviews, but that management should have the right to refuse that request.   As well he pointed out the possible difficulties of the attendance of a coworker who may be hostile to management and therefore of little assistance in the case.