Employment Law Daily NLRB advice memorandum says Weingarten rights should extend to non-union workplaces
Thursday, September 14, 2017

NLRB advice memorandum says Weingarten rights should extend to non-union workplaces

By Pamela Wolf, J.D.

In an advice memorandum released on September 7, the NLRB’s Office of the General Counsel concluded that Region 6 should use a pair of General Electric Company cases as vehicles to press the Board to extend Weingarten rights to unrepresented employees. The memorandum, dated December 1, 2016, also urges the Board to find that General Electric violated Section 8(a)(1) by forcing one employee to submit to an investigatory interview without the assistance of a coworker, and forcing another employee to submit to an investigatory interview in the presence of an anti-union employee witness who was unilaterally designated by the company.

The United Electrical, Radio and Machine Workers of America, Local 601 filed charges in the cases, but has never been certified or recognized as the exclusive collective-bargaining representative of the employees at General Electric’s Grove City plant, where the challenged incidents took place. The union urged the Board to reconsider and overrule IBM Corp, 341 NLRB 1288 (2004), and alternatively to find that IBM does not apply to the unique facts here.

Right to representative during interview. The U.S. Supreme Court held in Weingarten that employees may request the presence of a union representative at an investigatory interview when the employee reasonably believes the interview may result in disciplinary action. Since that case was decided, the Board found in Materials Research Corp., 262 NLRB 1010 (1982), and Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000) (enforced in relevant part 268 F.3d 1095 (D.C. Cir. 2001)), that employees in nonunion settings also have a right to have a coworker serve as a representative in investigatory interviews under Weingarten.

The Board concluded more recently, however, in IBM, that due to certain policy considerations, the Board would no longer find that employees in nonunion workplaces have the right to a coworker representative. The Board’s reasoning was that in a nonunion setting a coworker representative: (1) does not represent the collective interests of the entire workforce; (2) cannot redress the power imbalance between employers and employees; (3) does not have the same skills as union representatives; and (4) would compromise the confidentiality of the information received during the interview.

IBM wrongly decided. The Office of the General Counsel concluded in its recently released memorandum that IBM was wrongly decided, and, for the reasons stated in Bayhealth Medical Center, the Board should overrule IBM and once again recognize employees’ Weingarten rights in a nonunion workplace. In a footnote, the memorandum explains that the Bayhealth holding stressed that IBM “disregarded the importance of employee solidarity, which is a fundamental principle of the Act. When one employee supports another with respect to an issue that only appears to concern the latter employee, 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.”

In the General Electric cases, in addition to the solidarity that takes place when one coworker assists another in an investigatory interview, the employees’ requests for coworker representation stemmed from the employees’ protected concerted activity of forming an employee organization to address working conditions.

Other unique factors. The memorandum also points to “unique factors” in the General Electric cases that add to the argument for overruling IBM. The union has been functional, although only as a pre-majority labor organization, for the last three years at the Grove City facility. Accordingly, it has a network of trained stewards subject to the union’s constitution and bylaws requiring fair representation of their coworkers. “The Union’s stated goals include addressing collective concerns such as fair and consistent treatment of workers by the Employer, equal pay for equal work, and protecting worker benefits,” the memorandum states. “Thus, the concerns expressed in IBM regarding coworker representation, although largely unfounded in any non-union workplace, have even less traction in the circumstances presented by these cases.”

The Office of the General Counsel thus concluded that Region 6 should issue a complaint, absent settlement, alleging that the General Electric violated Section 8(a)(1) by denying one employee a representative altogether, and by unilaterally designating an anti-union representative for another employer rather than permitting that employee to choose his representative.

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