EXCERPTS from The NLRB Decision on Weingarten Rights

June 9th 2004

Dissenting, Members Wilma B. Liebman and Dennis P. Walsh pointed out that the U.S. Court of Appeals for the District of Columbia Circuit upheld the board's decision in Epilepsy Foundation as "both clear and reasonable" (268 F.3d 1095, 168LRRM 2673 (D.C Cir. 2001)). NLRA section gives "all workers, union-represented or not", the right to engage in concerted activities for the purpose of mutual aid or protection, the dissenters said. "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," they said.

Schaumber Concurs in Limiting of Weingarten Rights

"In a collective bargaining agreement, management recognizes the employees' chosen Section 9(a) representative as the representative of all bargaining unit employees and contracts away certain of its rights, including its right to deal with employees on an individual basis," Schaumber said. "In the absence of a collective bargaining agreement, however, an employers common law right to manage its business and deal with its employees 'may be excercized freely except as limited by public law and by the willingness of employees to work under the particular, unilaterally imposed conditions" "The Epilepsy Board never explained how, in the absence of a collective-bargaining agreement, an individual employee's insistence upon the presence of a co-worker necessarily constitutes concerted activity for mutal aid and protection," Schaumber said. He asserted that in the absence of a Section 9(a) representative, "Section 7's requirement of concerted activity may not be presumed but must be demonstrated."

Dissenters Decry Stripping of Rights

In their dissenting opinion, Liebman and Walsh asserted that "American workers without unions, the overwhelming majority of employees, are stripped of a right integral to workplace democracy" by the board's decision. "Workers without unions can and do successfully stand up for each other on the job--and they have teh legal right to try whether or not they succeed," the dissenters said. They pointed out that "there is no evidence before teh board that coworker representatives have interfered with a single employer investigation since Epilepsy Foundation issued in 2000."