Labor & Employment Law

Bush's NLRB Legacy: #1 of 12

Weingarten rights: non-union employees do not have them.

#1 in a series of 12 significant actions by the Bush Board.

IBM Corp., 341 NLRB No. 148 (06/09/2004) (3-2)

A " Weingarten right" is the right of an employee to have a union representative present when called in by the employer for an investigative interview, where the employer is investigating alleged wrongdoing by the employee.

This right was recognized by the Board and given approval by the US Supreme Court in the 1970's. Since then the Board has gone back and forth on the question of whether to extend similar rights to employees in the non-union sector.

In IBM Corp. the Board returned to the rule that Weingarten rights are available only for unionized employees.

My view:

As a matter of legal theory, the Weingarten principle has always rested on a thin reed. That thin reed originally was tied to the fact that the employee's request for the presence of a representative could be traced back to the original union organizational effort, and perhaps to the bargaining that resulted in a collective bargaining agreement. Therefore, this decision returns the theory to its roots, flimsy as they might be. As a matter of practicality, of course, the nonsense is that unionized employees who can (and often do) by contract require the presence of a representative do not need a statutory right, and the non-union employees are the ones with the need. Law, however, is often driven by theory rather than practicality.

This case does not mean that the statute as a whole does not apply to non-union employees. Non-union employees continue to have all their other statutory rights.

Full post as published by Ross' Employment Law Blog on January 02, 2008 (boomark / email).