NLRB GC May Stop Obama Board’s Expansion of Weingarten Rights

January 15, 2018 /

Many employers (and this management-side labor lawyer in particular) were surprised by the Obama Board’s inability to overturn IBM Corp., 341 NLRB 1288 (2004), and extend Weingarten rights to non-union employees. The Obama Board, nevertheless, expanded the scope of Weingarten rights in a few areas.

  1. Manhattan Beer: The Obama Board ruled that a beer distributor violated the NLRA by terminating a unionized employee for refusing to take a drug test without first providing him with a reasonable opportunity to consult in person with an authorized union representative, despite the fact that the employee was able to consult with a union representative via telephone.
  2. Howard Industries: This case broadened the range of permissible conduct by union representatives in Weingarten interviews to include allowing union representatives to assist witnesses by providing scripted answers.
  3. Fry’s Food Stores: The Obama Board ruled that Weingarten required an employee to have right to consult with a union representative not only during the investigatory interview, but also before the interview, even without the employee requesting such a meeting.

The Trump NLRB General Counsel issued GC Memo 18-2 which previews that his office will seek to rein in the Obama Board’s overreach by requiring Regions to submit to the Division of Advice any matters involving the range of permissible conduct by union representatives in Weingarten interviews and matters involving the application of Weingarten in the drug-testing context.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 843-3041 or emailing him at Matt@MattAustinLaborLaw.com.