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.
Which brings us to 2017.
On March 27, the NLRB Office of General Counsel released an advice memorandum (drafted the year prior)—Wal-Mart Stores, Inc. [pdf]—on this exact issue: whether an employer must recognize an employee’s Weingarten rights in non-unionized settings. The Board’s General Counsel concluded that Weingarten rights do exist in non-union workplaces:
IBM Corp. disregarded the importance of employee solidarity, which is a fundamental principle of the Act. When one employee supports another with respect to an issue that only appears to concern the latter employee, including being present in the investigatory interview of a coworker that might result in discipline, there is an implicit promise of future reciprocation and it does not matter whether those acting in solidarity represent any other employee’s interests. It is enough that one employee has made common cause with another.
This is all philosophically interesting, but why does this GC memo, written nearly a year ago, matter now?
Because Richard Griffin, the Obama-appointed NLRB General Counsel under whose name the Wal-Mart memo was issued, who serves as NLRB General Counsel until his term expires on November 4, 2017, does not decide cases. As General Counsel, he prosecutes cases, and helps make policy by deciding which charges to take to complaint, but he does not establish labor policy by deciding cases. That end falls squarely at the feet of the five-member (when it’s full), or, for now, three-member NLRB, currently chaired by Philip Miscimarra. When the Board reaches it’s max and/or when President Trump appoints a new general counsel after Richard Griffin’s term expires, this goal, along with many others of the Obama-era Board, will most certainly shift to the favor of management.
Folks, it matters who runs these politically appointed government agencies. Do not let anyone tell you any differently.
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.