Extending Weingarten to the Nonunion Setting: A History of Oscillation

Passed in response to the nineteenth century hostility towards union activity, the NLRA traditionally was viewed as a pro-union statute. However, as much as the Act contains provisions clearly aimed at protecting union activity, the Act explicitly applies to non-union employees as well as union employees. Nevertheless, many nonunion employers and employees are unaware of the existence of the NLRA despite it being the only law governing the relationship between an employer and its employees as a group in most private sector establishments in this country. This Note analyzes the conflicting history surrounding this issue and asserts that the necessary pre-requisites of section 7 (hereinafter § 7) of the NLRA are not satisfied when the Weingarten right is extended to the nonunion setting. The Note will begin the discussion with an analysis of Weingarten, the Supreme Court case that established Weingarten rights in the union setting. Next, the competing NLRB decisions regarding whether Weingarten should be extended to the nonunion setting will be set forth. Having set the stage, the discussion will turn to the definition of protected concerted activity within the meaning of the NLRA, specifically within the meaning of § 7 of the NLRA. The Note will then argue that the essential elements of concertedness and the mutuality are not met when only one employee in the nonunion setting is acting in relation to the employer during an investigatory meeting. As a result, this Note concludes that the Board erroneously grounded its Epilepsy decision on the practical consequences of its decision rather than a sufficient showing of concerted activity and mutuality when one nonunion employee, involved in an investigatory meeting with the employer, seeks the aid of a fellow employee