On September 7, 2017, the National Labor Relations Board (NLRB or Board) released several advice memoranda issued previously by the Board’s Office of the General Counsel to local field offices. Advice memos are used by the Board’s General Counsel to guide local offices on Board policy, and may serve to instruct the offices on a certain strategy or course of action in a particular case. Advice memos are not generally made public, but may be released in certain circumstances after a case has closed. These memos can then be used more broadly to understand the Board’s enforcement strategies.
One of the advice memos released by the NLRB this month (but originally issued on December 1, 2016) addresses Weingarten rights. As you will recall from our prior post, Weingarten rights allow employees to request representation during an employer’s investigatory interview that the employee reasonably believes could lead to disciplinary action. As we mentioned in that post, Weingarten rights consistently have been applied to employees in unionized workplaces. However, the Board’s position on whether employees in non-unionized workplaces have Weingarten rights has fluctuated (to say the least) over time.
Current Board precedent, set in 2004 in IBM Corp., is that employees in non-unionized workplaces do not have Weingarten representation rights. IBM expressly overruled the Board’s prior decision in Epilepsy Foundation (in 2000), that employees in non-unionized workplaces do have Weingarten rights. Epilepsy Foundation was a departure from the Board’s 1988 decision in E.I. Dupont, in which the Board then held that Weingarten rights do not apply to employees in non-unionized workplaces. Perhaps you are sensing the pattern.
It may therefore not come as a surprise that the current NLRB General Counsel (whose term ends this October) issued an advice memo in December 2016, during the Obama administration’s last days, directing a local NLRB office to seek yet another about-face in Board law by asking it to issue a complaint seeking to overrule IBM and reinstate the position that Weingarten rights do apply to non-unionized workplaces. However, due in part to the fact that the subject case of this Weingarten advice memo closed without further litigation, it is unlikely that the memo will, in fact, impact Board precedent, particularly under the new Presidential administration. Weingarten rights are not the only Board precedent that employers can expect to change under the Trump administration, but it is certainly a study in the bigger, dizzying effect that political shifts in Board composition can have on employers.