If a company is non-union, and an employee is called into a meeting to investigate for possible discipline, may the employee demand to be represented by another employee? The NLRB has swung back and forth on this issue, and continues to do so.
Workers represented by unions have long had the right to insist on a union representative during an investigatory interview where there is a reasonable belief that discipline could result. These rights are typically referred to as Weingarten rights, named after the 1975 U.S. Supreme Court case in which these rights were recognized. The NLRB has since flip flopped on the issue of whether non-union employees are entitled to Weingarten rights. In 1982, the NLRB concluded that employees in non-union settings also had the right to have a co-worker represent them in an investigatory interview. The NLRB reversed itself in 2004 however, and concluded that non-union employees did not have that right.
In an opinion published on September 7, 2017, the Office of the General Counsel of the NLRB concluded that the NLRB should be asked to reverse itself again and overrule its most recent decision in this area and conclude that employees in a non-union setting are entitled to representation during certain investigatory interviews. Following the advice memorandum, which was issued (but not published) late last year, a complaint was issued against General Electric alleging it unlawfully denied non-union employees representation during certain investigatory interviews. However, a review of that case’s docket reveals that while a trial was scheduled in that case, the case was ultimately closed based on “withdrawal.” This was likely due to a change in the make-up of the NLRB given that the Senate has recently confirmed the fifth and final member of the “new” NLRB, which now has a majority of three Republicans to two Democrats. Additionally, President Trump has nominated Peter Robb, a management-side labor attorney, as the new NLRB General Counsel. If Robb is confirmed, he would have authority to, and likely would, promptly reverse the position taken by the current General Counsel, Richard Griffin relating to Weingarten rights for non-union employees.
At present, a non-union employer does not have an obligation to grant a request for representation by another employee during an investigation. However, stay tuned! We will follow this issue closely and provide updates if any cases come down as to a decision on whether non-union employees are entitled to Weingarten rights.