As we’ve made clear in our Workers Rights Watch: Eye on the NLRB series, a number of recent decisions from the National Labor Relations Board have restricted the rights of workers struggling to form unions. What we haven’t mentioned before is that the Board has narrowed legal protections for the majority of Americans who are not represented by a union, but who need to turn to co-workers for ‘mutual aid and protection’ when they fear employer reprisal.  A case involving a non-union Wal-Mart employee makes evident how labor law impedes rather than protects these workers’ rights.

On March 10, 2001, Wal-Mart employee Ken Stanhope approached Cindy Adams, his co-worker at a Wal-Mart store in Wasilla, AK.  He talked about "the need to have a union," inquired about her union sympathies, and used obscenities to describe the Wal-Mart store’s managers.  Adams reported this conversation to her managers, who then ordered Stanhope to attend an investigatory meeting. 

Aware of his legal rights, Stanhope requested that an independent witness join him at the investigatory meeting when it appeared he might be disciplined.  But the store’s managers broke the law and denied his request.  The next day, Wal-Mart fired Stanhope after he refused to attend the second meeting without the presence of a witness. 

Stanhope filed charges against Wal-Mart with the National Labor Relations Board.  In 2002, an Administrative Law Judge found Wal-Mart guilty of illegally denying Stanhope his right to have a witness at an investigatory meeting.

Wal-Mart appealed the decision, but while that case was pending, the Republican majority of the Board issued a decision in another case revoking the rights of non-union employees to request a witness in investigatory meetings, while maintaining that right for union employees.¹  And in December, the Board applied this decision retroactively to the Wal-Mart case, letting Wal-Mart get away with denying Stanhope’s request for a witness and effectively leaving him in the cold.²

There are 106 million non-union employees in this country.³  Weak labor laws make it difficult for these workers to obtain union representation in the face of stiff employer resistance.  Yet without a union contract to protect them from unfair discipline, these employees have an even greater need to seek help from their co-workers. 

Unfortunately, the Board gives non-union workers little support to pursue help in the workplace without fearing reprisal from their employers.  The average American worker is left to wonder who they have to turn to anymore.

  Recent Board Decisions Limit Mutual Protection for Non-Union Workers
 

Holling Press, decided on October 15, 2004
When a worker was fired for soliciting help from her co-worker in a sexual harassment case, she filed suit with the NLRB that her dismissal was in violation of her right to seek mutual aid or protection.  The Board majority disagreed and ruled she was merely acting in her own self-interest.  The dissent wrote, "The Board has long recognized that alleviating unlawful discrimination in the workplace is in the interest of all employees…. At bottom, [the decision] encourages victims of sexual harassment to remain silent."

IBM Corp., decided on June 9, 2004
The Board reversed precedent and denied requests of three non-union employees to have co-workers present as witnesses during investigatory meetings.  The dissent wrote, "[According to the NLRA] all workers, union-represented or not, have the ‘right to…engage in…concerted activities for the purposes of…mutual aid or protection.’"  It is hard to imagine an act more basic to ‘mutual aid or protection’ than turning to a co-worker for help when faced with an interview that might end with the employee fired. 

The 1975 U.S. Supreme Court decision, NLRB v. J. Weingarten, Inc, gives an employee the right to have a union representative in an investigatory meeting when they have reason to believe they will be disciplined.  In 2000, the Board gave non-union employees the right to have a witness present.  And in 2004, the Board reversed the 2000 ruling, and removed Weingarten rights for non-union employees (see IBM above).

Endnotes

1. IBM Corp., 341 NLRB No. 148 (2004).
2. Wal-Mart Stores, Inc., 343 NLRB No. 127 (2004).
3. According to the U.S. Department of Labor, Bureau of Labor Statistics, 106.5 million workers were without union representation in 2004, which comprises 86% of the workforce.
4. Sixty-Eighth Annual Report of the National Labor Relations Board, 2003.