Are your non-union employees entitled to representation during meetings which may lead to discipline?
Not yet, but the National Labor Relations Board (NLRB) is looking to change that dynamic.
For the union-free among us, unionized employees are entitled to, upon request, union representation in any investigatory interview that could reasonably lead to discipline of that employee. These are called Weingarten rights, and they were named after the U.S. Supreme Court case, which held that unionized employees have these rights.
There was a brief time in 2000 when the NLRB extended the right to representation in investigatory interviews in nonunionized settings. The extension did not last long, and for over two decades since, nonunionized employees have not been entitled to such representation.
However, the landscape is shifting under the current Biden Board, and the NLRB is looking for opportunities to change the law again. In May 2022, in a case involving Starbucks, the NLRB issued an advice memorandum that said the Starbucks case was not the right one to use to return to the 2000 law but, in doing so, signaled that it might be moving in that direction.
On January 17, 2024, an NLRB attorney recently submitted a brief to the full Board in an active case (Big Green, Case 27-CA-276068) asking the Board to extend representation to nonunionized employees. The attorney stated that granting an employee the right to bring a coworker into an investigatory interview is the only permissible interpretation of the National Labor Relations Act. This is because the Act protects the rights of employees to band together for mutual aid or protection. The NLRB attorney reasoned that “an unrepresented employee’s utilization of a fellow employee for assistance satisfied the required elements of protect concerted activity” and that such a right “greatly enhances the employees’ opportunities to act in concert to address their concern ‘that the employer does not initiate or continue a practice of imposing punishment unjustly.”
Interestingly, the NLRB attorney expressed their belief that denying a nonunionized employee the right to representation in an investigatory interview goes against certain judicial precedent based on the ‘solidarity’ principle – i.e., the National Labor Relations Act and worker solidarity go hand in hand. To deny representation to non-union employees is to deny the opportunity for worker solidarity. It is almost surprising they did not use Pete Seeger lyrics to advance their argument (Solidarity Forever anyone?). But alas, legal filings tend to be banal.
So, as of today, an employer has no obligation to honor a non-union employee’s request to have a representative present during an investigatory interview. As is typical with the current Board, what is law one day may not be the law the next. Employers should keep an eye on developments in this space.