"NOW YOU HAVE IT, NOW YOU DON'T": THE NLRB'S FICKLE AFFAIR WITH THE WEINGARTEN RIGHT AND THE NEED FOR CONGRESS TO END THE CONTROVERSY

Abstract

For more than two decades a debate has raged over whether nonunionized employees are entitled to a witness in investigatory interviews that could lead to disciplinary actions. Such a right was determined to exist for unionized employees in the 1975 landmark decision of National Labor Relations Board v. J. Weingarten, Inc. Ever since, the National Labor Relations Board (NLRB) has wrestled with the question of whether the so-called “Weingarten right” should be extended to all employees, whether unionized or not. After reviewing the important decisions that illustrate the NLRB’s incessant flip-flopping on the issue, we provide a summary of the NLRB’s latest (June 2004) rationale for denying this right to nonunion workers. To prevent the further and inevitable politicization of this issue if left to the whims of an ever-shifting NLRB majority, we suggest that Congress more fully enunciate the applicability of the Weingarten right to the nonunion workplace by amending the relevant section of the NLRA. The most important single piece of federal legislation in the area of labormanagement relations is the National Labor Relations Act (NLRA) [1]. Under the NLRA, Congress created public policy that seeks to balance the rights, responsibilities, and bargaining power of employers and employees. Individuals tend to think about the NLRA in terms of a unionized workplace. What many