- within Compliance topic(s)
Originally appeared in Labor and Employment Newsletter - February 2002
In July 2000, the National Labor Relations Board ("NLRB") overturned a 12-year-old precedent by extending to non-union workers the right to have a co-worker accompany them to an investigatory interview that might result in discipline. Unionized workers had long enjoyed this right to "representation" emanating from the U.S. Supreme Court’s 1975 decision in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975).
In November 2001, the Court of Appeals for the District of Columbia Circuit upheld the NLRB’s decision, affirming that the National Labor Relations Act ("NLRA") protection of all employees’ rights to engage in ‘concerted activity for the purpose of mutual aid or protection’ also provides Weingarten rights to non-union workers. Epilepsy Foundation of N. E. Ohio v. NLRB, 268 F.3d 1095 (D.C. 2001).
Changing Political Winds
The Epilepsy Foundation terminated two employees, one for refusing to attend a disciplinary meeting without the co-worker present, and the second for refusing to accept supervision. Both employees were being disciplined for sending a memorandum critical of their boss to the boss’s supervisor. The NLRB administrative law judge ("ALJ") dismissed the employees’ claims, finding that Weingarten rights did not extend to non-union workers and that there was no connection between the second employee’s discharge and protected activity under the NLRA.
In a situation not uncommon when the composition of the NLRB changes due to new political administrations, the NLRB reversed the ALJ’s decision in 2000, finding Weingarten rights were available to non-union workers.
Not Retroactive
The Appellate Court agreed with the NLRB that the right to engage in concerted activities, as protected by §7 of the NLRA, is not dependent on union representation. Affording an employee the right to have a co-worker present during an investigatory meeting is a means to effectuate this §7 right. However, the Appellate Court did not apply this ruling retroactively, protecting the settled expectations of those, like the Epilepsy Foundation, who relied on the old rule.
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