Labor Board to Non-Union Workers:‘You’re on Your Own When You Face the Boss’

Reversing course for the fourth time in 30 years, in June the NLRB announced it would no longer protect the right of a non-union worker to refuse to participate in an investigatory interview without the assistance of a co-worker. The new case is IBM Corp.

In 1972-73, the NLRB overruled earlier precedents and established what became known as the Weingarten rule, named for the case that approved the rule in the Supreme Court. Weingarten said that a lone union-represented member facing questions from a hostile supervisor can refuse to talk without being provided union assistance.

In 1982 the NLRB extended this right to non-union workers who request a fellow employee. The board said the presence of a co-worker might deter the employer from overreaching and could relieve the interrogated employee of needless apprehension.


In the non-union context, however, the right has been a contentious issue in the years since Weingarten.

In a du Pont case in the 1980s, the NLRB affirmed this right for non-union employees. A court of appeals in Philadelphia upheld the board. The case should have been over, but new Reagan-appointed board members asked to have it back. The board then reversed itself, saying the law cannot be interpreted to give the right to non-union employees.

The court disagreed when du Pont came up again, and sent it back to the NLRB. Looking at it for the third time, the board stated that the law does permit an interpretation in favor of non-union employees, but that they would choose not to interpret it that way. The court found this logic agreeable and, seven years after the board’s orginal decision, it affirmed.

Things were quiet for a decade. Then, in 2000, the Clinton board jumped in to say non-union employees do have the right. The D.C. Court of Appeals upheld the board, describing the reasoning as “compelling” and the opposing employer argument as “terribly shortsighted” and “plainly meritless.”


With the new IBMdecision, the board has reverted to the pre-1970s view. Agreeing again that it could legally have decided the case in favor of the workers, it chose not to. The reasoning is worth quoting, and at length. Part of the NLRB’s job is to gather experience through trial-and-error decisions about changing industrial practices over the years. Hence:



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The years after the issuance of Weingarten have seen a rise in the need for investigatory interviews, both in response to new statutes governing the workplace and as a response to new security concerns raised by terrorist attacks on our country.... [B]ecause 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.

Of course, the foregoing has nothing to do with investigatory interviews. The board did not try to document its assertions with academic research or evidence about the particular workplace at IBM. Even had it done so, these factors would apply equally to union workplaces.

But in IBM the board said union workplaces are distinctive: Unlike a union, a co-worker does not represent the entire bargaining unit and has no duty of fair representation. Co-workers do not have the same skills as union representatives. Co-workers cannot redress the imbalance of power between employers and employees. Co-workers may compromise the confidentiality of information, or may even be implicated in the investigation.

Again, none of these distinctions has anything to do with the Weingarten doctrine’s basis, which is workers’ right to engage in concerted activity for mutual aid or protection.


Two dissenting board members noted the decision is “a powerful case for unionization.” What about non-majority unions? Can they argue that IBM is a recruiting point for them?
Under conventional notions of labor law today, probably not. Such a union would have to convince or force an employer to recognize it for its members, assume a duty of fair representation, develop a track record of skilled representation, and then prove these facts to a skeptical NLRB.

But non-majority unions challenge conventional notions of general labor law. New avenues may be opening for them as they gain currency and progressive researchers re-examine the NLRB’s tenets and early history.

Even so, one wonders whether the NLRB’s attitude can be an effective talking point for an organizer trying to develop a militant union at a new workplace.

There is one other way out of this. Pro-labor members may again be appointed to the board some day. Under IBM, a new board would be free to cite new industrial practices or a win in the war on terror. For the fifth time, it could flip-flop again.

Ellis Boal, an attorney and Labor Notes’ websteward, has litigated and written on the issue of "concerted activities for ... mutual aid or protection." IBM Corp is downloadable at decisions/341/341-148.pdf.