Many thanks to Arslan Sheikh for his assistance in preparing this post.

Presume your workplace is non-union. You are interviewing an employee about facts that might lead to disciplining her. She tells you she wants a co-worker to sit in on the interview as her representative to advise her. The lawyers that advise the National Labor Relations Board (NLRB) are taking the position that you have to allow it.

Last week, the office of the general counsel to the NLRB issued an advice memorandum that has significant implications for all non-union employers. The memo concludes that an employee in a non-union workplace should be entitled to co-worker representation during an investigatory interview by the company. This is contrary to existing NLRB precedent which holds that representation rights like this do not apply where there is no union representative. As explained below, whether the general counsel’s advice becomes law remains to be seen. But in the meantime, employers are wise to be aware of this advice memo because it will likely influence the way NLRB regional offices act in enforcement proceedings at least for now. Refusing an employee’s request for representation in an interview might result in a local NLRB office issuing a complaint and forcing the employer to fight it out in a hearing.

Weingarten rights

Workers represented by unions have long had the right to insist on a union representative being present in investigatory interviews where the investigation could lead to them being disciplined. These are usually referred to as Weingarten rights, from the name of the 1975 U.S. Supreme Court case in which they were first recognized. Under current NLRB case law, Weingarten rights are not available to non-union employees. But, in a case involving General Electric, the office of the general counsel has advised the NLRB regional office in Pittsburgh that now is the time to take this issue up and argue that Weingarten rights should be extended to non-union workers.

The General Electric advice memo

General Electric was accused in unfair labor practice charges of not allowing representation to workers who were being interviewed for possible disciplinary action. The workers at the facility are not currently represented by a union. Some of the workers have an informal representation arrangement with a union, but that union has not obtained enough support to be certified as representative for all. Some workers asked to be represented by co-workers in investigatory interviews. The request was denied. The General Electric advice memo encourages the Pittsburgh regional office of the NLRB to take the position that Weingarten rights should extend to non-union workers.

What happens next?

Assuming the regional office takes the advice given by the general counsel, and that seems likely, the office will pursue the case against General Electric. If the case is not settled, it goes to a hearing before an NLRB administrative law judge and the judge may issue a decision extending Weingarten rights to non-union workers. That decision could be appealed to the full NLRB and the door would be open to reverse the current law and assure Weingarten rights to non-union workers.

But will that happen? Recent developments in Washington call the longevity of the General Electric advice memo into question. President Trump has nominated Peter Robb, a management-side labor attorney, to serve as general counsel to the NLRB. If Robb is confirmed by the Senate, he will have the power to reverse the position taken by the current general counsel in the General Electric advice memo. Also, the make-up of the NLRB is changing. In the near future, it is likely that Republican appointees will make up a majority of the five member NLRB which has the final say on NLRB cases. A Republican controlled NLRB faced with this issue would probably uphold the current precedent limiting Weingarten rights to union workers.

Although the incoming general counsel may decide to discard the General Electric advice memo in the future, the memo tells us what to expect in the meantime from the NLRB regional offices who decide whether to issue complaints against employers. Current NLRB regional offices may follow this advice memo for enforcement guidance. Therefore, non-union employers should be aware that if an unfair labor practice charge is filed based on a denial of representation rights in investigations, it might result in a long period of time, cost and effort to win the battle in enforcement proceedings.

We will follow this issue closely and report about any cases that reach the point of a decision on Weingarten rights in a non-union setting.