The Rights of Nonunionized Employees to Have a Co-Worker Present in a Disciplinary Meeting

Many nonunion employees don't feel they need a co-worker to be present during a disciplinary meeting.

Many nonunion employees don't feel they need a co-worker to be present during a disciplinary meeting.

Although the U.S. president doesn't dictate whether a nonunion employee can have a co-worker present during a disciplinary meeting, that employee's rights might depend on who's sitting behind the desk in the Oval Office. The rights of a nonunion employee -- and, a union employee, for that matter -- generally coincide with whether a Democrat or Republican president is in office.

Federal Law

Section 7 of the National Labor Relations Act guarantees employees' rights to concerted activity. The law doesn't specifically state that both union and nonunion employees are covered, but it does, according to the U.S. National Labor Relations Board. The NLRB is the independent federal agency that enforces the NLRA. Section 8 of the NLRA states that employers can't run interference between employees' rights and the laws that say workers can engage in concerted activity or seek union representation.

Weingarten Rights

When an employee meets with her manager, supervisor or even someone from the human resources department, that meeting could result in disciplinary action. Or, the meeting could turn out to be an investigative step concerning the employee's role in a workplace issue. Union employees have what are called "Weingarten rights," based on a 1975 U.S. Supreme Court case, NLRB v. J. Weingarten, Inc. The NLRB has applied Weingarten to a number of cases to determine whether employees can have backup to support them during a conference for disciplinary action or investigation. As of April 2013, a union employee is entitled to have one of her co-workers attend the meeting, but a nonunion employee isn't. Nonunion employees can't have a co-worker present during a disciplinary meeting, based on a 2004 reversal of a 2000 case that challenged the 1975 Supreme Court case. As of April 2013, Weingarten hasn't been challenged since that 2004 decision during a Republican administration.

Change is Constant

In the Weingarten case, the court ruled that union employees can have a co-worker present during an interrogation. The court also ruled that the NLRB could decide whether this right applies to union or nonunion employees, or both. The NLRB structure and how presidential appointments affect the board are key elements to understanding why nonunion employees' Weingarten rights aren't constant. Therefore, the answer to whether a nonunion employee can have a co-worker present during a disciplinary meeting is, "It depends."

NLRB Composition

The highest level of the NLRB comprises five presidential-appointed seats for five-year terms, subject to Senate confirmation. The expiration dates are staggered so there's diversity among board members' perspectives, yet continuity in NLRB practices. Democrats are more likely to impose rules that favor workers and Republicans are likely to impose rules that favor business. Control of the NLRB changes according to the administration in office; therefore, decisions that may affect the rights of nonunion employees and union employees change, depending on who's in office and whether the NLRB has any cases that challenge Weingarten rights.

Weingarten Application

The NLRB has the discretion to apply Weingarten, and according to which party controls the board, it could result in Weingarten application for both union and nonunion employees, or for just union employees. When Democrats control the board, application of Weingarten is probably going to apply to both union and nonunion employees; during a Republican administration, it'll generally apply to just union workers. But it all depends on whether Weingarten rights are challenged during each administration and who's in control of the board.

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About the Author

Ruth Mayhew has been writing since the mid-1980s, and she has been an HR subject matter expert since 1995. Her work appears in "The Multi-Generational Workforce in the Health Care Industry," and she has been cited in numerous publications, including journals and textbooks that focus on human resources management practices. She holds a Master of Arts in sociology from the University of Missouri-Kansas City. Ruth resides in the nation's capital, Washington, D.C.

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