Monday, September 19, 2022

The NLRB is inching towards Weingarten Rights for all employees

In NLRB v. J. Weingarten, Inc., the U.S. Supreme Court held that employees covered by a collective bargaining agreement are entitled to request the presence of a union representative during an investigatory interview that the employee reasonably believes may result in disciplinary action. 

In the 47 years post-Weingarten, however, the Board has vacillated on the issue of whether those rights also extend to non-union employees. For example, in 2000, in Epilepsy Foundation of Northeast Ohio, 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. Finally, in 2017, an Obama-era Board Advice Memo called for the Board to flip again and hold Weingarten rights extend to employees in non-union workplaces.

Which brings us to last week's Board decision in Troy Grove

The specific issue presented and which the Board decided was whether replacement workers brought in by an employer during a strike enjoy the same Weingarten rights as the unionized striking employees they are replacing. The Board concluded that they do.
[I]n the Respondent's view, permanent replacements have the same Weingarten rights as employees in non-union settings, which is no Weingarten rights. We find the Respondent’s arguments without merit. 
At all relevant times during this proceeding, the Union was the exclusive bargaining representative of the unit employees at issue in this proceeding. In addition, it is well established that a bargaining unit includes "nonstrikers, strikers, returning strikers, and striker replacements[.]" Here, then, the permanent replacements were part of the Respondent's "unionized employees" for purposes of determining Weingarten protections, and thus the Respondent's analogy to non-union settings is inapposite.
It would be easy to limit Troy Grove to its specific facts — the Weingarten rights of permanent replacement workers — but for the fact that NLRB General Counsel Jennifer Abruzzo is already on the record with her support for expanding Weingarten to apply to all employees, union and non-union. The right case will come before this Board that will allow for the expansion of Weingarten rights to non-union employees. Troy Grove wasn't that case, but it's a definite signal that we are headed in that direction, likely sooner rather than later.