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NLRB: Nonunion Employees Do Not Have A Right To A Co-Worker’s Presence During Investigatory Interviews

As we have frequently reminded our readers, even non-unionized employers need to pay close attention to the National Labor Relations Board’s (NLRB) rulings and opinions as to employees’ rights under applicable labor law. For example, the NLRB has focused on employee handbook provisions – applicable to both union and non-union employers, which it considers to be in violation of the National Labor Relations Act (NLRA).

A recent Board opinion, however, demonstrates that there are circumstances where the Board will decline to extend certain rights to nonunion employees. Specifically, the Board has determined that so-called Weingarten rights do not apply to nonunion employees. Weingarten rights enable union workers to insist on having a representative present during investigatory interviews that could reasonably result in discipline. Pursuant to the NLRB’s recent ruling, however, nonunion employees do not have a right to request that a co-worker or representative be present during such interviews.

Weingarten rights derive their name from a 1975 U.S. Supreme Court decision called NLRB v. J. Weingarten Inc. The NLRB has changed its stance over the years on whether Weingarten rights extend to nonunion workplaces. For example, in a 2000 decision, Epilepsy Foundation of Ohio, the Board held that nonunionized workers did, indeed, have a right to representation during investigatory interviews. However, in a 2004 case, the Board held that employees at nonunionized workplaces do not have the right to ask for a co-worker to be present during such interviews. Specifically, the Board found that the right of a nonunion employee to a co-worker’s presence was outweighed by an employer’s right to conduct prompt, efficient, thorough, and confidential workplace investigations.

Last November, Charles Strickler, a former Board attorney, petitioned the NLRB to reverse its stance and again find that Weingarten rights apply to nonunion employees.  However, in its May 4 opinion, the Board unanimously declined to issue a new rule on Weingarten rights.   Although the Board may change its stance regarding Weingarten rights in the future, its recent unanimous decision means that at least for the time being, nonunion employees do not have the right to a co-worker’s presence during investigatory interviews.

Employers, however, should bear in mind that there are many other NLRA protections that extend to nonunionized workers, including protections associated with “protected concerted activity” which includes co-workers talking with other co-workers about wages, benefits, working conditions and participating in a concerted refusal to work in unsafe conditions, among others. Employers are, therefore, well advised to pay attention to NLRB rulings on this and other matters.

© 2021 Foley & Lardner LLPNational Law Review, Volume VII, Number 142
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About this Author

Yesenia Garcia Perez, Foley, Health Care Reform lawyer, Breach of Contract Disputes Attorney
Associate

Yesenia Garcia Perez is an associate and litigation lawyer with Foley & Lardner LLP and a member of the firm’s Business Litigation & Dispute Resolution and Labor & Employment Practices.

Ms. Garcia Perez has experience working on a variety of complex litigation matters including health care litigation, financial services litigation and fraud and breach of contract disputes.

In the area of labor and employment, Ms. Garcia Perez has represented employers in federal and state litigation matters involving a...

415.984.9834
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