Do nonunion employees possess Weingarten rights?

Weingarten is a city in southern Germany, a famous piano player, and a grocery store dispute generating a 1975 United States Supreme Court decision wherein employees fought for and won the right to have a union representative present at investigative interviews demanded by the employer.  In this edition, we discuss the Weingarten employee rights case instead of the city or the piano player.  Are you disappointed?

There are three essential rules included in Weingarten rights:

1.  The employee must make a request for union representation (representative, officer or steward) before or during an investigative interview.  An investigative interview is any meeting between the employer and employee that the employee reasonably believes may result in discipline.

2.  With the request the employer must wait for the union representative to attend before proceeding with the interview or terminate the interview;

3.  The employer may not retaliate against the employee for exercising her rights and if the employer fails to respect the employee’s rights or retaliates, there may be grounds for an allegation of an unfair labor practice.

The next natural question is whether nonunion employees also have Weingarten rights?

The answer to this question has an interesting history.  President Clinton’s National Labor Relations Board (NLRB) decided that nonunion employees possessed these rights, the second Bush administration changed the rule and now President Obama’s NLRB is looking at returning to the Clinton position.  In a memorandum generated by the NLRB’s main lawyer (Richard Griffin) dated February 25, 2014, this issue is on the NLRB’s proactive agenda which may mean a push toward the Clinton era rules.  In other words, the NLRB may attempt to again extend Weingarten rights to the nonunion workforce.  What does that mean to tribal employers?

For tribal employers, the threshold issue is whether the National Labor Relations Act (federal union law) applies to tribal employers and there are arguments that the law does not apply.  If the law does not apply, the NLRB does not possess jurisdiction over tribal employers.  On the other hand, if the law applies, and there are arguments supporting this position, the NLRB could attempt to enforce its rules.

If the law applies, and if the NLRB adopts the Clinton era position, your nonunion employees may have the right to invite a colleague to your investigative interview.  The risks associated with the application of Weingarten to the tribal workplace include the erosion of sovereignty, less efficient investigations and increased opportunities for disclosure of confidential information.  On the other hand, might Weingarten rights be aligned with the traditions of some tribes.  Within some tribes, tradition allows the head of a family or clan to be the spokesperson for family or clan members.  In applying that tradition to the workplace, if an employee faces an investigative interview and wants to bring another employee who may be a strong spokesperson, might this be consistent with the traditions of some tribes and a substitute for so called Weingarten rights?  Of course confidentiality is a concern when an employee seeks to involve others in these interviews when sensitive or confidential information is discussed, but with a signed reaffirmation of the confidentiality policy, the risk is mitigated.

Alternatively, and frankly I am in favor of this option, I believe that Weingarten rights in the nonunion workplace is a misplaced idea and tribes have a sovereignty argument which may prevail against the application of these rules.  In that case, tribal employers should define the rules in a way which conforms to the tribe’s values and conduct investigations in a professional manner and expect adult employees to stand on their own two feet and cooperate with their employer by providing complete and truthful information in response to employer questions.  Said another way, I am not in favor of conceding to Weingarten rights in the tribal workplace, but instead I am in favor of the tribe defining its own rules to achieve its goals while respecting the dignity of its employees.

Recommendation:  Keep an eye on the NLRB and the pending cases addressing its jurisdiction in Indian Country, but instead of drafting policies which extend Weingarten rights to employees, train your investigators to conduct interviews in a professional manner which respects the dignity of tribal employees.