Who Has Weingarten Rights in Non-Union Workplaces?

(Note: The information in this article is intended as informational and is for educational purposes only. It is not intended as legal advice. If you have specific questions about how Weingarten Rights apply to your workforce, please seek the advice of legal counsel.) 

The National Labor Relations Act (NLRA) doesn't specifically have a clause on Weingarten Rights. It does say in Section 7 of the NLRA that, "Employees shall 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…" As the following sections discuss, the rights of union and non-union employees to request a union representative be present during investigatory interviews with management concerning workplace behaviors has a history of change. It's important to understand employee Weingarten Rights and employer rights to hold meetings with employees without unreasonable interference and in a way that avoids charges of Unfair Labor Practices (ULPs) 

What are Weingarten Rights?  

These types of rights for union employees were established in the 1975 National Labor Relations Board (NLRB) case of NLRB v. J. Weingarten, Inc. (420 US 251). The case decision established that Section 7 of the NLRA protects union-represented employees who refuse to be interviewed without a union representative present during what is believed to be a disciplinary meeting with a manager or supervisor.  

The union representative or Weingarten Representative can be a: 

  • Union steward 
  • Union officer 
  • Union business agent 
  • Fellow union employee 

Weingarten rights specifically refer to the right of a Weingarten representative to: 

  • Be present during the employee interview 
  • Provide advice to the employee 
  • Proved active assistance to the employee 

As an employer, you'll violate the NLRA if you choose to refuse the union employee's request for a Weingarten Representative and continue the interview anyway or if you retaliate against the person for asking for union assistance. The NLRB can take several actions in that situation. 

  • Order the employer to cease and desist, and/or 
  • Order a remedial notice be posted, and/or 
  • Require the employer to interview the employee again with a union member, present, and/or 
  • Reverse or remedy the discipline action administered to the employee as related to the Weingarten violation 

That is the basics of Weingarten Rights. As you will read in the following sections, there are other elements that establish Weingarten Rights, like the purpose of the interview and the employee's belief as to the purpose and possible consequences of the meeting 

What Establishes the Initiation of Weingarten Rights? 

Employers hold disciplinary meetings all the time, but when a union member is involved, some characteristics of the meeting can initiate Weingarten Rights for employees. You don't have to tell a union member they have Weingarten Rights, and no one else can request a union representative for the employee. It's up to the employee to tell the employer they need a Weingarten Representative who may simply be called a union representative.  

What type of meeting can trigger an employee's request? 

  • The meeting involves a manager, supervisor, or an organization's authorized representative questioning an employee. 
  • The questions concern the employee's work performance or workplace behaviors. 
  • The employee may have to defend, explain, or admit work performance issues or poor workplace behavior, and the admitting could lead to disciplinary action or discharge. 
  • The employee believes the interview could lead to discipline, discharge, demotion, suspension, or other actions that harm job status or working conditions. 

What if there is doubt whether the meeting concerns disciplinary action? In that case, the NLRB evaluates the meeting circumstances. This is reminiscent of the "totality of circumstances" in which all the surrounding circumstances and actions taken and previous disciplinary practices come into play. However, it's always wise for an employer to be transparent about the purpose of the meeting.  

One important consideration is that the meeting must be an investigatory meeting. If a disciplinary decision has already been made, or the employee asks for a meeting to discuss a disciplinary action, the employee doesn't have Weingarten Rights. 

The History of Weingarten Rights 

As is true for many NLRB decisions, there is a history of back-and-forth decisions on Weingarten Rights. The various decisions are politically driven in that the majority political party representatives on the NLRB determine the board's perspective on union versus non-union employee rights. Following are some of the most important cases.  

non union workplaces

Weingarten Rights are Established with Rules 

Weingarten Rights, as mentioned, were established in the case of NLRB v. J. Weingarten for only union workers when The Supreme Court agreed with an NLRB decision that employees have a right to union representation at investigatory interviews. These aren't rights found specifically in the NLRA. They are an interpretation of Section 7 of the NLRA in that union representation requested by employees at employer-initiated inquiries are considered as "concerted activity for mutual aid or protection."  

The Supreme Court established some rules for the investigatory interview. 

  • The employee must make a clear request for union representation before or during the interview. 
  • Once the employee request is made, the employer can,  
  1. Grant the employee's request and give the union representative an opportunity to consult with the employee 
  2. Refuse the request and end the interview immediately 
  3. Give the employee a choice: end the interview or proceed without representation 
  • If the employee request is denied, and the employer continues to ask questions, an Unfair Labor Practice (ULP) is committed because the NLRA was violated. 

Weingarten Rights are Extended to all Employees 

In July 2000, in the case of Epilepsy Foundation of Northeast Ohio and Arnis Borgs and Ashraful Hasan (331 NLRB 67), the NLRB decided that non-union employees had a right to representation during investigatory interviews. This case took place during the Bill Clinton presidency. 

For the first time, Weingarten Rights were allowed for union and non-union employees. 

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Weingarten Rights Extended Again to Only Union Employees 

In 2004, in the case of IBM Corporation and Kenneth Paul Schult, Robert William Bannon, and Steven Parsley. (11-CA-19324), the NLRB overruled the Epilepsy Foundation decision and returned to "earlier Board precedent holding that the Weingarten right does not extend to a workplace where, as here, the employees are not represented by a union." This case took place during the George W. Bush presidency. 

Some other cases in between these bestowed and took away Weingarten Rights for non-union employees, but these are the most notable decisions.  

Weingarten rights

Do Weingarten Rights Apply in Non-union Workplaces? 

Currently, Weingarten Rights only apply to unionized employees. However, this can change with an NLRB decision in favor of unions during an Unfair Labor Practice Charge (ULP)  

There are two events that point to Weingarten Rights being given to all employees once again. One is a Mandatory Submissions for Advice memo issued by NLRB General Counsel Jennifer Abruzzo in August 2021 (Memorandum GC 21-04). The memorandum says it wants NLRB regions to submit specific cases on various cases for NLRB evaluation. The purpose is to change the application of the NLRA. It includes "Cases involving the applicability of Weingarten principles in non-unionized settings as enunciated in IBM Corp., 341 NLRB 1288 (2004)." Abruzzo clearly wants all employees to have Weingarten Rights.  

The second event concerns the second union vote at Amazon in Bessemer, AL. A group calling itself the Coalition to Defend Amazon Workers posted a tweet that alleges a union supporter was denied Weingarten Rights during an investigative interview. In the same tweet, it was claimed the independent Amazon Labor Union would be filing Unfair Labor Charges.  

The February 25, 2022 tweet reads, "Last night, @amazon unlawfully denied @peace4every0ne Weingarten Rights (right to co-worker witness during HR investigatory meeting). Today @amazonlabor will be filing Unfair Labor Charges @NLRB @NLRBGC#ExpandWeingartenRights #UnionStrong 

A second tweet on the same day reads, "Time for @NLRB @NLRBGC provide all American workers with Weingarten Rights and the right to due process at work. We demand the National Labor Relations Board immediately overrule [sic] IBM Corp., 341 NLRB 1288 (2004)." 

These tweets indicate the focus of a group of non-union employees on gaining Weingarten Rights by leveraging a union organizing campaign, and they also demonstrate the influence of alt-unions or worker unions on pursuing changes at the federal level concerning union issues.  

What Do Employers Need to Know about Weingarten Rights Now? 

Employers do have rights concerning investigatory interviews. Union representatives aren't allowed to behave however they want at the interviews. Following are some of the employer's rights as established by various NLRB cases. 

  • Weingarten Representatives don't have the right to interfere with an effective interview. 
  • Employers shouldn't eject disruptive union representatives but can ask the person to stop interrupting or otherwise stop interfering with the process. 
  • Employers don't have to prematurely terminate an interview because a union representative demands it. 
  • Employers can answer questions posed by the union representative for purposes of clarification. 
  • Employers can stop union representatives from answering questions for the employees. 
  • Employers don't have to allow verbatim recordings of interviews involving union employees. 
  • Employers don't have to allow the union representative to prevent the employee from answering questions. 
  • Employers don't have to explain a refusal to allow union representation and can continue an inquiry without an interview to come to a disciplinary decision.
  • Employers don't have to bargain with the union representative during an interview. 

The bottom line is that employers don't have to tolerate union representatives who make it impossible to hold an investigatory interview because of their bad behavior, i.e., interruptions, talking over people, talking for the employee, etc. The union representative is there mostly to listen to the interview and to advise the employee on union matters.  

What's Next for Weingarten Rights? 

There seems to be a trend towards making Weingarten Rights applicable to all employees. The current NLRB has made it clear it's pro-union and is striving to help unions grow their membership. Allowing a union representative to participate in an investigatory meeting is one way for the union to demonstrate its supposed benefits to the employee.  

It's important to train all organizational leaders in employer rights concerning Weingarten Rights and not give employees or unions an opening to file a ULP with the NLRB. Unions would have employees believe that employers don't have many rights, and that's not true. They would also have all employees, and not just union employees, believe they can demand Weingarten rights because employees filing ULPs open up opportunities for the NLRB to pursue Weingarten Rights for non-union employees. This is what's happening at Amazon.   

Leadership training and staying on top of NLRB decisions are two of the most effective strategies for avoiding issues in areas like Weingarten Rights.  

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