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.