Representation for Non-union Employees in Disciplinary Actions

Does anyone have any information on a recent Supreme Court decision (NLRB vs. J. Weingarten, Inc.)? I'm made to understand that as a result of this ruling, a non-union represented employee (like his/her union represented counterpart) must have a "representative" present during a meeting with management in which the empoloyee has reason to believe he/she will be disciplined.


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  • "Weingarten" is an old U.S. Supreme Court opinion that gave union employees the right to have a union representative present in meetings that they think might lead to discipline. The new decision you're asking about is actually from the NLRB, NOT the Supreme Court. It says nonunion employees have a similar right to the one given union employees in the Weingarten case. My article discussing this decision is located under the heading "National News," which should appear on the left-hand side of your monitor under "Employment Law News & Advice." The name of the article is "NLRB makes sweeping changes for nonunion employers." Let me know if you have any questions.

    Julie Athey
    Senior Attorney Editor

  • I have an article on the subject if you would like me to send it to you. My email is [email][/email]

  • The articles are great places to get the details, but briefly, the NLRB's decision holds that non-union employees are entitled to ask for a co-worker to be present when the employer is conducting an investigatory interview for the purposes of discipline. The keys here are "ask" (employers do not have to volunteer); "co-worker" (not mother, lawyer, or a union organizer who is not a co-worker); and "investigatory interview" (seeking information from the employee in advance of determining whether or not to impose discipline or what level of discipline to impose.) This can be tricky. I recommend you read the articles suggested by the other editors for more, in depth discussion.

  • You must only give the employee the opportunity to have a co-worker present if the employee asks for the employee to be present. However, you do not have to offer the employee the opportunity to have a co-worker present. Further, you do not have to allow an employee to have a co-worker present even if the request is made if you have already decided what disciplinary action you are giving and you are not going to engage in discussion about the action other than to let the employee know what the action is. However, if you cross the line and start engaging in converation about the facts leading up to the action, you could cross the line into an investigation mode which would allow an employee to have a co-worker present.

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