The National Labor Relations Board’s (NLRB) outgoing General Counsel, Richard Griffin, recently released an Advice Memorandum urging the Board to overrule its prior decision in IBM Corp. and extend employees’ Weingarten rights to non-union settings. If the IBM Corp. decision is overruled, employers with non-unionized workforces will be required to grant employee requests for representation by a co-worker during workplace investigations.
In 1975, the U.S. Supreme Court recognized in NLRB v. Weingarten, Inc. that unionized employees have a right to be represented by a co-worker at investigatory interviews. In its Epilepsy Foundation decision in 2000, the NLRB extended the Weingarten representation right to non-union employees in investigatory interviews that could result in disciplinary action. In non-unionwork settings, employees faced with an interview that could result in discipline or termination were, with this decision, afforded the right to representation by a co-worker. However, in 2004, the Board issued a decision in IBM Corp., overruling its prior decision in Epilepsy Foundation and holding that Weingarten rights were limited to unionized workforces. Thus, employers with non-unionized employees have been free to deal directly with their employees in disciplinary matters and deny employee requests for representation by co-workers during an investigation.
While the possible overruling of the IBM Corp. decision would have a serious impact on non-union employers’ ability to conduct effective workplace investigations, it is likely that Griffin’s Advice Memo will have no immediate effect. The NLRB is governed by a five-person board and a general counsel, all of whom are appointed by the president with the consent of the Senate. Board members are appointed to five-year terms and the general counsel is appointed to a four-year term. Griffin was nominated by President Obama and was sworn in as general counsel of the NLRB on November 4, 2013. Thus, his term is set to expire on November 4, 2017. As President Trump will appoint Griffin’s replacement, it is very likely that the new general counsel will re-evaluate Griffin’s position on Weingarten rights and will abandon Griffin’s push for the board to overrule IBM Corp. Moreover, with the recent nominations of Marvin Kaplan and William Emanuel to the board, and an anticipated additional nomination by President Trump in December, it is safe to expect that the Republican majority in the five member board will result in a profound shift away from the policies established during the Obama administration and toward a more management-friendly view of labor laws.
Griffin’s Advice Memo serves as a reminder that politics often influences agency guidance. Any change in the composition of the board could result in changes to its views on the application of labor laws to both union and non-unionized workforces. While non-union employers are currently free to deal directly with employees in disciplinary matters, they should be aware that the board’s position on Weingarten rights is open to revision in the future. When in doubt, employers should consult with their labor counsel.
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