November 30, 2022

Volume XII, Number 334

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NLRB Recognizes Weingarten Rights for Strike Replacement Employees

In a decision significant to employers that employ strike replacement employees or that may consider hiring strike replacement employees, the National Labor Relations Board (NLRB) found that such employees hold the right to request the presence of a union representative during an investigatory interview that may lead to discipline. In Troy Grove a Div. of Riverstone Group Inc., 371 NLRB No. 138 (September 14, 2022), the NLRB rejected Troy Grove’s argument that strike replacement employees were analogous to workers in a non-union setting who do not maintain such rights.

Background

Troy Grove was a mining aggregate company with two quarries at which a local of the union, the International Union of Operating Engineers, represented a unit of employees. In May 2016, the company’s and union’s collective bargaining agreement expired. Almost two years later, in March 2018, the employees voted to begin a strike. In May 2018, after the strike began, Troy Grove hired Matt Kelly as a replacement worker.

On August 14, 2018, the employer interviewed Kelly regarding a series of attendance violations. During the interview, Kelly requested a union steward before the interview began. The employer rejected that request and offered to allow another employee attend the interview. That employee did not hold a position in the union but attended Kelly’s interview. After the interview, the employer terminated Kelly’s employment because of his repeated tardiness.

The NLRB’s Analysis

The Board affirmed the administrative law judge’s decision that Troy Grove had impermissibly denied Kelly his right for a union representative to attend his investigatory interview, even though he had been a strike replacement employee. An employee’s right to union representation, on request, during an investigatory interview is commonly referred to as Weingarten rights and is based in the Supreme Court of the United States’ holding in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975).

In Weingarten, the Supreme Court permitted the NLRB to construe Section 7 of the National Labor Relations Act (NLRA) to grant a represented employee the right to have a union representative present for an investigatory interview where the employee has a reasonable belief it may lead to discipline. In these circumstances, after an employee requests a union representative, the employer may either grant the request, discontinue the interview, or offer the employee the choice of continuing the interview without a union representative or not having an interview at all.

The Weingarten Court reasoned that requesting the attendance of a union representative in such circumstances sought to preserve the interests of the entire bargaining unit to ensure the employer did not develop a practice of unjust punishment. Additionally, the Court explained that the Board’s interpretation of Section 7 maintained the appropriate balance of power between labor and management that the NLRA seeks to redress.

In Troy Grove, the Board rejected the employer’s argument analogizing Kelly, a strike replacement employee, to an employee in a non-union setting. The Board explained that the union was the exclusive bargaining representative of the employer’s unit of employees, regardless of the fact that Troy Grove employed Kelly as a strike replacement employee. While the Board confirmed that an employer has the right to unilaterally implement the terms and conditions of employment for strike replacements, it explained that whether a strike replacement employee maintained Weingarten protections was a different question. The Board reasoned that an employee’s Weingarten right is held by the individual and based on Section 7 of the NLRA, rather than a right held as a term or condition of employment.

Key Takeaways

The Troy Grove decision establishes the Weingarten right for a strike replacement employee to request a union representative to be present during an investigative interview that may lead to discipline. When a demand for a union representative is made by a strike replacement employee, the employer will likely need to evaluate its response pursuant to Weingarten.

Under current NLRB precedent, employees in non-union settings do not hold any Weingarten rights during investigatory interviews. However, in Memorandum GC 21-04, published on August 12, 2021, the NLRB General Counsel Jennifer Abruzzo identified the scope of Weingarten rights as a subject of examination for potential future cases that her office might pursue. Specifically, General Counsel Abruzzo identified the extension of Weingarten rights to non-unionized settings as an area of mandatory submission to advice by the NLRB’s regional offices.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XII, Number 279
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About this Author

Jesse R. Dill attorney Ogletree Deakins
Attorney

Jesse has a wide range of employment law litigation and compliance counseling experience. He has obtained successful verdicts for his clients in multiple forums, including state circuit courts, Federal Mediation and Conciliation Service arbitration proceedings, and administrative hearings before the Equal Rights Division. This litigation experience complements Jesse’s compliance counseling for clients on all aspects of the employment relationship. He regularly assists clients to assess legal liability related to personnel decisions, prepare employment law policies that...

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