Third-Party Representation for Nonunion Employees—A Question of Privacy or Just Equal Treatment in the Workplace
Michael J. Aiello
DOI: 10.2190/B853-5671-UMGK-6YA3
Abstract
The nonunion employee has a right to protect his/her privacy interests and employment status during investigatory and disciplinary interviews. In the nonunion workplace, the lack of collective bargaining and employee organization give rise to serious concerns about employee protection. The nonunion employee is often forced to confront and overcome the significant power imbalance inherent in the employer-employee relationship. This imbalance is more evident and threatening in the nonunion workplace where employers are not challenged by a union shop steward and have no reason to suspect an organized response by disgruntled employees. The nonunion employee must be allowed to employ the assistance of her coworker during exchanges with her employer. While the assistance of the coworker is not a substitute for a union representative or union organization, it would serve to increase equality and diminish the power imbalance. The presence of a coworker, known as the right to third-party representation, is available to union employees, however, nonunion employees are not able to seek the protection of third-party representation. The right to third-party representation must be made available to all employees—union and nonunion employees. The National Labor Relations Board has deprived nonunion employees of the opportunity, the right, to engage in concerted activity for mutual aid and protection. This right is afforded all employees under section seven of the National Labor Relations Act. The board and the courts initially held that this right did extend to nonunion, as well as, union employees. In 1988, however, the board reversed its position by ignoring the mandates of section seven and the needs of nonunion employees. The board relied on speculation in distinguishing the needs and necessarily the rights of union and nonunion employees. The policy supporting the right to third-party representation in the union workplace is met, if not overcome, in the nonunion workplace. The right to representation at investigatory interviews is a form of fundamental concerted activity for mutual aid and protection. By depriving employees of this right, the board has stripped them of the opportunity to overcome the inherent power imbalance and to safeguard privacy and employment interests. The right to third-party representation must be made available to nonunion employees in the same way as it is current available to union employees.
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