Weingarten Rights in the Non-Union Workplace: A Merry-Go-Round of NLRB Decisions - Chapter 15 - AAA Handbook on Labor Arbitration & ADR, 3rd Edition
David A. Dilts is a Professor of economics at Indiana/Purdue University, Fort Wayne, Indiana. He serves as an arbitrator on the panels of the Federal Mediation and Conciliation Service (FMCS) and various state labor boards. He is also a permanent arbitrator for the United States Postal Service (USPS) and its unions. A member of the National Academy of Arbitrators, Dr. Dilts serves as editor of the Journal of Collective Negotiations in the Public Sector. He has previously contributed to the Dispute Resolution Journal.
The late Clarence R. Deitsch (d. 2015) was a Professor of economics and labor relations at the College of Business, Ball State University. He also had served as an arbitrator on the panels of the FMCS, the National Mediation Board, and several state labor boards. He was a permanent arbitrator for the USPS and its unions.
Francine Guice is an Assistant Professor of business law at Indiana/Purdue University, Fort Wayne, Indiana. She holds a J.D. from Texas Southern University. She works and publishes on legal topics pertaining to all aspects of personnel law and intellectual property law.
WEINGARTEN RIGHTS IN THE
A MERRY-GO-ROUND OF NLRB DECISIONS
Clarence R. Deitsch, David A. Dilts and Francine Guice
Employers are increasingly adopting alternative dispute resolution (ADR) procedures, including binding arbitration, to resolve disputes involving at-will employees—those who do not have the protection of a collective bargaining agreement. Although these procedures may be similar to grievance procedures in a labor-management agreement, the rights of union and non-union employees in otherwise similar circumstances are not the same.
For example, a union employee who reasonably expects to be disciplined by the employer for violation of a work rule has the right to have a union representative present during a pre-discipline interview. This well settled principle was established by the U.S. Supreme Court’s decision in the celebrated Weingarten case, a case arising under the National Labor Relations Act (NLRA, also known as the Wagner Act). In keeping with the Court’s earlier decision in Mobil Oil Corporation, the National Labor Relations Board (NLRB) held that employees had a right to union representation when requested when there was an exclusive bargaining representative recognized by the employer. However, it is not settled whether this right extends outside the collective bargaining setting to ADR proceedings in the private workplace.