Most good nonunion employers think that discipline is something done behind closed doors and is a private matter between the company and the employee. Sometimes if termination may be involved two managers from the company will participate in the meeting to insure accuracy of information. What if you had to let the employee have a representative in the meeting as their witness?
The Weingarten Rule
In 1975 the Supreme Court of the United States (SCOTUS) ruled on the case of the NLRB v. J. Weingarten, Inc. 420 U.S. 251 (1975), which dealt with the right of an employee to have union representation in a disciplinary and/or investigatory hearing. The Supreme Court SAID that the following rules apply:
Rule 1: The employee must make a clear request for union representation before or during the interview. The employee cannot be punished for making this request.
Rule 2: After the employee makes the request, the employer must choose from among three options:
- grant the request and delay questioning until the union representative arrives and (prior to the interview continuing) the representative has a chance to consult privately with the employee;
- deny the request and end the interview immediately; or
- give the employee a clear choice between having the interview without representation, or ending the interview.
Rule 3: If the employer denies the request for union representation, and continues to ask questions, it commits an unfair labor practice and the employee has a right to refuse to answer. The employer may not discipline the employee for such a refusal. (Source: Wikipedia)
This ruling only applied to union members until 2000 when the Clinton Administration National Labor Relations Board extended it to nonunion companies as well. I bet you did not know that this was a right you had to allow at one point. However, in 2004 the Bush administration NLRB overturned the previous ruling and thus nonunion companies no longer had to allow employees any representation in a disciplinary or investigatory meeting. That is how it stands today. Unless….
Now the very active Obama Administration NLRB is thinking of reversing the reversal with the announcement that “The GC also seeks to review cases involving the applicability of Weingarten principles (the right of an employee to have a representative or witness at investigatory interviews that can potentially result in disciplinary action) to non-union workplaces” according to the attorneys at Epstein, Becker & Green.
This is just one area these attorneys warn us that the NLRB’s General Counsel is looking at. Read here for more. Just this one area however, could be very disruptive to nonunion workplaces and slow down the process of investigations and discipline.
Let us hope the NLRB sees the wisdom of leaving Weingarten rights to union companies and not extending them to nonunion companies.