The NLRB "Limits" Weingarten Rights In Non-Union Worksites But Significant Traps Remain For Non-Union Employers

Employers with unionized workforces are all too familiar with the legal requirements imposed by the National Labor Relations Act ("NLRA"). But non-union employers often are surprised to learn that the NLRA comes into play in non-union worksites as well.

Labor and Employment

"Protected Concerted Activity" in a Non-Union Workplace

Under Section 7 of the NLRA, all employees, regardless of union status:

  • have the right to self organization, to form, join, or assist labor organizations,
  • to bargain collectively through representatives of their own choosing, and
  • to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.

The National Labor Relations Board (the "Board") applies the above language to prohibit non-union employers from:

  1. limiting employee discussions regarding salary, benefits or job conditions;
  2. disciplining employees for sending emails critical of specific managers or company policies; or
  3. terminating employees for walking off the job as part of a "concerted activity."

In short, even in a non-union worksite, employers may not restrain employees from joining together to improve their working conditions, i.e., exercising their "Section 7 rights."

Non-Union Employees Are No Longer Entitled to Have a Co-Worker Present During Investigatory Interviews

The right of an employee to a co-worker’s presence in the absence of a union is outweighed by an employer’s right to conduct prompt, efficient, thorough and confidential workplace investigations.

One of the most common pitfalls for non-union employers during the past four years was the extension in 2000 of so called "Weingarten rights" to non-union employees. The U.S. Supreme Court in a 1975 decision in NLRB v. J. Weingarten Inc., required that employers grant union employee requests for a union representative to attend an investigatory interview that might lead to discipline of the employee. In July 2000, the NLRB ruled that non-union employees could request the presence of a co-worker at an investigatory interview. On June 9, 2004, the NLRB reversed its position for the fourth time in the past 22 years, announcing "that the Weingarten right does not extend to a workplace where . . . the employees are not represented by a union." See IBM Corporation, 341 NLRB No. 148, at 7 (June 9, 2004).

According to the Board’s 3-2 decision, "the right of an employee to a co-worker’s presence in the absence of a union is outweighed by an employer’s right to conduct prompt, efficient, thorough and confidential workplace investigations." The policy concerns guiding the Board’s recent split decision include a practical recognition of changing patterns in the workplace, such as "the rise in the need for investigatory interviews . . . particularly laws addressing workplace discrimination and harassment," and "because of the events of September 11, 2001 and their aftermath."

Non-union employers may now breathe a collective sigh of relief, knowing that they will not be charged with an unfair labor practice for refusing to permit co-workers to attend investigatory interviews. Nevertheless, before employers begin rewriting their handbooks and policies, they should realize that the Board has changed course on this important issue four times during the past 22 years, and that even with this encouraging development the NLRA continues to affect non-union employers.

Section 7 of the NLRA Still Prohibits Employers From Interfering with Other Protected Concerted Activities

The Board continues to enforce Section 7 to protect non-union employee rights to engage in other forms of protected concerted activity, including the following:

  • Free To Discuss Discipline, Wages and Benefits

Non-union employers cannot prohibit employees from discussing work conditions, wages or discipline. In Double Eagle Hotel & Casino, an employer violated the NLRA by promulgating a work rule that prohibited employees from sharing such information with each other or persons outside the company. Double Eagle Hotel & Casino, 341 NLRB No. 17 (Jan. 30, 2004). Such a rule, according to the Board, "plainly infringes on upon Section 7 rights."

  • Email Complaints About Company Policies

Non-union employers cannot terminate employees for sending mass emails complaining about new company policies. An employee’s "effort to incite other employees to help him preserve a vacation policy which he believed best served his interests, and perhaps the interests of other employees, unquestionably qualified his communication as being in pursuit of mutual aid or protection." Timekeeping Sys., 323 NLRB 752 (1997). Even if the email does not request other employee participation and is sarcastic in nature, such communications remain protected under the NLRA.

  • Non-Union Employees Are Free to Walk Off The Job To Complain About Supervisors or Other Job Conditions

Another common trap is when non-union employees walk off a job to protest certain job conditions. Most employers naturally (but incorrectly) presume that they may terminate non-union employees for abandoning the job. But that is not always the case. If, for example, employees engage in a work stoppage due to a legitimate job complaint, the NLRA may protect such conduct. In Trompler, Inc., an employer was held liable for back pay and reinstatement for terminating six employees who walked off the job in response to unanswered complaints about their supervisor. In re Trompler Inc. v. NLRB, 338 F.3d 737 (7th Cir. 2003) enforcing, 335 NLRB 478 (2001). Such a work stoppage may qualify as "protected concerted activity" under Section 7 of the NLRA.