The more things change … the NLRB and Weingarten rights for non-union employees

Today, a joke.

“How is the National Labor Relations Board like the weather?”

“I don’t know, Jon, how?”

“If you don’t like either, just wait and they’ll change.”

[groan]

Not my best material, I know. But, it does illustrate an important point, driven home by an Advice Memo [pdf] just released by the NLRB Office of General Counsel on the issue of Weingarten rights for non-union employees.

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 September 2017, and the NLRB Office of General Counsel’s aforementioned advice memo. 

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.