Gone Today, and Yesterday Never Was

We all know of so many ways that employers can stack the deck against employees, but now employers have a new tool in their arsenal, courtesy of the National Labor Relations Board (NLRB). Now, unless an employee is a member of a union, he or she must face an employer alone, rather than being allowed to have a co-worker present as a witness during a meeting with the employer which could lead to disciplinary action. Given that it is proving increasingly difficult to make any dent in the number of American workers, 106 million, who are not members of a union, this decision makes it even more likely that employers will exercise their ability to terminate employees at will.

For three decades, union members have had what are known as Weingarten rights, based upon a 1975 U.S. Supreme Court case, NLRB v. Weingarten, Inc., which held that union employees have the right to have a union representative at any “investigatory interview that the employee reasonably believed would result in disciplinary action.” These rights can be loosely compared to Miranda rights for criminal suspects: if you think that what you say might get you in trouble, you have the right to have someone else present. Weingarten rights are just some of the protections that union members have: more importantly, union members generally can only be terminated for “just cause,” according to collective bargaining agreements which prevent unfair terminations without any process or remedy. (See Shortchanged: Legal Protections.)

A non-union employee finds their position much more precarious, however: most do not have just cause protections, and instead are subject to the “employment at will” doctrine. This doctrine presumes that an employee has no right to continued employment and may be terminated at any time by an employer, whether or not there is just cause for the termination. (See Shortchanged: Legal Protections.) Under most circumstances, it is only if an employer violates specific laws, such as those prohibiting discrimination or retaliation, that an employee challenge an unfair termination.

In the year 2000, however, the National Labor Relations Board, the federal agency that deals with the law relating to unionized employees, held that even non-union employees had Weingarten rights. (See Epilepsy Foundation of Northeast Ohio.)You might ask how a non-unionized employee could have any rights under federal labor law, but the NLRB reasoned that even employees who are not yet union members have the right to act collectively to provide “mutual aid and protection” to one another in opposing an employer’s unfair practices. A non-union employee could, of course, still be terminated unfairly, but at least he or she might have a supportive witness who was familiar with the employer’s efforts to impose discipline. And in the best-case scenario, the employer would be less tempted to say or do something that could haunt it later.

Four years later, in a political flip-flop occasioned by a 3-2 Republican majority, the NLRB reversed itself to rule that no, non-union members did not have Weingarten rights after all. In IBM Corp., the Board said that there were new policy considerations that made it no longer feasible for employers to have an extra employee present during investigatory interviews. Think 9/11, Patriot Act, and any other similar security-related justification for denying individual rights that cropped up thereafter: “Because of the events of September 11, 2001 and their aftermath, we must now take into account the presence of both real and threatened terrorist attacks. ” Now that employers are increasingly forced to conduct more employee investigations — increasing the likelihood that some would conclude unfairly — the Board removed one of the few remaining weapons that employees have in that situation: the presence and advocacy of a third-party witness.

Well, it was great while it lasted, right? Wrong. Just ask Ken Stanhope of Wasilla, Alaska. He dared to take on the almighty Wal-Mart, suggesting in 2001 to a fellow employee that perhaps it was time to have a union. However, he made the mistake of describing the store’s managers in less than flattering (and probably obscene) terms. His co-worker, Cindy Adams, reported his comments to store management, who decided the next day to have a little talk with Ken. Ken knew his rights, and insisted that an independent witness be able to join him for the meeting. Wal-Mart refused, and sent him home for the day. The next day, Wal-Mart again attempted to meet with Stanhope, but he refused to meet with them unless they permitted a witness, which Wal-Mart would not do. Ken Stanhope was eventually terminated for creating a hostile environment and using foul language, without Wal-Mart ever hearing his side of the story. It was clear, however, that his refusal to participate in an interview without an witness present contributed to the decision to fire him. (See Wal-Mart Stores, Inc.)

Stanhope sued, thinking that it was against the law for Wal-Mart to fire him for exercising his Weingarten rights. In the first round, an administrative law judge ruled in his favor in 2002, stating that Wal-Mart had violated Stanhope’s rights. However, the NLRB ruled in December 2004 that not just employees after the Board’s 2004 IBM ruling were out of luck, but anyone who relied on those rights even during the period that they were lawfully in effect might be out of luck too.

Parsing the issue more finely than a Ginzu knife, the Board ruled that after the IBM decision, employees could be fired for refusing to proceed with an interview without a witness, even though they couldn’t be fired for asking to have a witness. Basically, after IBM, you can ask, but you shall not receive. So what’s the point in asking, it’s fair to question, and you’re right: there is no point. So Stanhope, unable to divine the future, thought that if his right meant anything, it meant that a meeting couldn’t proceed without his witness. But he was wrong: he was supposed to go: “oh, okay, nevermind then,” when Wal-Mart said no.

Here at Workplace Fairness, we’re well aware that the legal information that we share with you could change at any time (see disclaimer). But non-union employees should also be aware that without the protection of a union, what rights they think they have might end up being illusory. It’s not just “here today, gone tomorrow,” as we call our Short-Changed section on the lack of legal protections for non-unionized workers: it may soon be “gone today, and yesterday it never existed.” And there won’t be much that non-union workers can do about it, until the next election, anyway.

More Information:

American Rights at Work: Vast Majority of American Workers Are Without Real Protection by the NLRB

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Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.