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NLRB’s General Counsel Says Nonunion Workers Should Have Representation Rights During Investigative Interviews

Posted on: September 13th, 2017

By: Paul H. Derrick

The National Labor Relations Board is at it again. A recently-released memorandum from the Board’s Division of Advice reveals that the Office of the General Counsel directed one of the NLRB’s regional offices to issue two complaints against an employer for refusing to allow nonunion workers to have a representative of their choosing accompany them to investigative interviews. The memorandum explains that the complaints should then be litigated in hopes of getting the five-member NLRB to reverse current law and extend so-called Weingarten rights to nonunion workplaces.

Weingarten rights stem from a 1975 U.S. Supreme Court case in which the justices ruled that unionized workers have a right to request a union representative’s presence at any investigative interview that reasonably could result in disciplinary action. The NLRB has flip-flopped over the years, depending on which political party was in power, about whether Weingarten rights apply in a nonunion workplace. In 2000, it ruled that nonunion workers had a right to representation during investigative interviews. In 2004, it reversed course, noting that nonunion co-workers, friends, and third-parties had no place in the process because they do not represent the collective interests of the workforce and they lack the advisory and negotiating skills of trained union stewards.

The recent General Counsel memorandum says that the NLRB simply got it wrong in 2004 because it failed to take into account the importance of employee solidarity as a fundamental labor law principle. “When one employee supports another…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.” The memorandum went on to say that a nonunion employee who requests Weingarten representation should be entitled to the representative of his choice, as long as that choice does not cause undue delay in the investigation.

Whether the NLRB will actually address nonunion Weingarten rights anytime soon is far from certain. Earlier this year, it unanimously denied a petition requesting that it use its rulemaking power to simply mandate that all nonunion employees be afforded Weingarten rights. Also, the two cases addressed in the General Counsel’s memorandum could be resolved through a settlement, in which case the NLRB itself would not be presented with the issue.

We will continue to keep you apprised of developments in this area as they occur. In the meantime, if you have any questions or would like more information, please contact Paul Derrick at [email protected].

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