Weingarten Rights No Longer Apply To Nonunion Employees

As anticipated by many, the National Labor Relations Board (NLRB) has ruled once again on nonunion employee Weingarten rights. In its June 9, 2004 decision in IBM Corp., 341 N.L.R.B. No. 148, the NLRB ruled 3-2 that so-called Weingarten rights (after the 1975 Supreme Court decision that recognized unionized employees’ right to a representative) do not apply in a nonunion setting. The decision in the IBM case overrules the board’s 2000 decision to the contrary in Epilepsy Foundation of Northeast Ohio, 331 N.L.R.B. 676.

Over the last 20 years the NLRB has flip-flopped on the issue, having ruled in 1982 that nonunion employees did have Weingarten rights and then in 1985 that they did not. In 1988, the board affirmed its position that nonunion employees do not have Weingarten rights, but acknowledged on remand from the 3rd U.S. Circuit Court of Appeals in E.I. DuPont & Co., 289 N.L.R.B. 627, that this was a “permissible” rather than a “mandatory” interpretation of the National Labor Relations Act (NLRA). In other words, the language of the NLRA permits both interpretations.

In IBM the Board adopted the view that either interpretation is permissible, but concluded that national labor relations policy would be best served by overruling the Epilepsy Foundation case and returning to the principles adopted in DuPont. The opinion cited the “ever-increasing requirements to conduct workplace investigations in a thorough, sensitive, and confidential manner” as policy considerations justifying its decision to return to the former rule.

The IBM decision is still subject to a possible reversal by a U.S. Circuit Court of Appeals. The case does not change the broad labor law principle that union and nonunion employees alike have the right to engage in protected concerted activity for their mutual aid, and specifically that nonunion employees have the right to seek representation by a fellow employee. An employee cannot be disciplined for asserting those rights. The case holding is that the nonunion employer has no obligation to comply with the request and deal collectively with the employees.

Some experts believe that another change in the current board’s composition could result in yet another review of the issue and a different decision.