In NLRB v. J. Weingarten, Inc., the U.S. Supreme Court held that employees covered by a collective bargaining agreement may request the presence of a union representative during an investigatory interview that the employee reasonably believes may result in disciplinary action. In the 42 years hence, the Board has vacillated on the issue of whether Weingarten rights also extend to non-union employees. For example, in 2000, in Epilepsy Foundation of Northeast Ohio [pdf], the Clinton-era Board found that employees in non-union settings have Weingarten rights to a coworker representative during investigatory interviews. More recently, however, the Bush-era Board, in IBM Corp., concluded the exact opposite, that, in light of certain policy considerations, the Board would no longer find that employees in non-union workplaces have the right to a coworker representative.
We conclude that the … Board … extend Weingarten rights to unrepresented employees and find that the Employer violated Section 8(a)(1) by forcing one employee to submit to an investigatory interview without the assistance of a coworker and by forcing another employee to submit to an investigatory interview in the presence of an anti-Union employee witness unilaterally designated by the Employer.
Practically speaking, this call for action will mean little to nothing. Richard Griffin, the Obama-appointed NLRB General Counsel, only serves until his term expires on November 4, 2017. Thereafter, President Trump will appoint a new NLRB General Counsel, presumably one who will have a more management-friendly view of federal labor laws (including the non-expansion of Weingarten rights to non-union employees).
Nevertheless, this Advice Memo is a solid reminder of how our federal administrative agencies can, and often do, sway in the political breezes.
This post originally appeared on the Ohio Employer’s Law Blog, and was written by Jon Hyman, Partner, Meyers, Roman, Friedberg & Lewis. Jon can be reached at via email at email@example.com, via telephone at 216-831-0042, on LinkedIn, and on Twitter.