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Total Articles: 11

Outgoing NLRB General Counsel Urges Board to Extend Weingarten Rights to Non-Union Employees

The National Labor Relations Board’s (NLRB) outgoing General Counsel, Richard Griffin, recently released an Advice Memorandum urging the Board to overrule its prior decision in IBM Corp. and extend employees’ Weingarten rights to non-union settings. If the IBM Corp. decision is overruled, employers with non-unionized workforces will be required to grant employee requests for representation by a co-worker during workplace investigations.

Labor Law Lessons from Our Favorite Films: Dirty Dancing (Weingarten Rights – Nobody Puts Weingarten In The Corner)

As noted in our previous post about Dirty Dancing, as part of its investigation into thefts of guests’ property, the resort owner interviewed staff dance instructor, Johnny Castle (Johnny denies involvement in the burglaries), to determine whether he had an alibi for the evening when Moe Pressman’s wallet was stolen. We now know that Castle responded that he was in his room reading all evening. The resort owner’s grandson, Neil Kellerman, found this explanation implausible as there were no books in Castle’s room. However, the movie may have ended differently if Johnny had availed himself of rights afforded to him by the Supreme Court’s decision in NLRB v. Weingarten, 420 U.S. 251, 257 (1975), and its progeny.

No Weingarten Rights for Nurses in Peer Review Proceeding, Federal Appeals Court Rules

Nurses had no right to union representation in their hospital employer’s peer review committee proceedings, the Court of Appeals for the District of Columbia Circuit has ruled. Midwest Division – MMC, LLC, dba Menorah Medical Center v. NLRB, No. 15-1312 (D.C. Cir. Aug. 18, 2017). The Court, however, found the hospital violated the National Labor Relations Act by refusing to provide the union information it requested about the peer review committee and by maintaining an overbroad confidentiality rule.

Employee's Right to a Witness

Like a tennis match, an employee’s right to a witness during an employer’s investigatory interview has bounced back and forth over the years. This month the National Labor Relations Board confirmed that a non-union employee does not have the right to the presence of a witness when interviewed by her or his employer during an investigation.

NLRB Won’t Create Rule Extending to Nonunion Workers Right to Have Union Rep at Disciplinary Interview

The National Labor Relations Board has decided not to exercise its discretionary authority to engage in rulemaking at this time to reverse the Board’s decision in IBM Corp., 341 NLRB 1288 (2004), and extend Weingarten rights to nonunion employees.

Federal Court Upholds NLRB Decision Finding That Employee Had Right To Physical Presence of Union Representative Before Consenting To Drug Test

A federal appeals court upheld November 16, 2016 the decision of the National Labor Relations Board (NLRB) that an employer violated Section 8(a)(1) of the National Labor Relations Act by denying an employee the right to the physical presence of a union representative before consenting to take a drug test, and by discharging him for refusing to take the test without a union representative present. Manhattan Beer Distributors LLC v. National Labor Relations Board, Nos. 15-2845, 15-3099 (2d Cir. Nov. 16, 2016).

eLABORate: NLRB Finds Beer Dealer's Termination Of Employee For Refusing Drug Test Violates His Weingarten Rights

On August 27, 2015, the National Labor Relations Board (“NLRB”) determined a Manhattan beer distributor violated the National Labor Relations Act (“NLRA”) when it terminated a unionized employee for refusing to take a drug test without first providing him a reasonable opportunity to consult in person with an authorized union representative. Manhattan Beer Distributors, LLC, 362 NLRB No. 192 (August 27, 2015). The employee, a driver for the company, had shown up to work “reek[ing] of the smell of marijuana” and had “glassy and bloodshot” eyes. The employee refused the employer’s direction that he submit to a drug test because no union representative was available at the time to advise him regarding the test.

NLRB Says Beer Dealer’s Refusal-To-Drug-Test Firing Doesn’t Mix With “Weingarten Rights”

Brewing more trouble for workplace drug testing, the National Labor Relations Board has held a New York beer distributor violated the National Labor Relations Act by denying its driver helper, who reported to work with his clothes “reek[ing] of the smell of marijuana” and with “glassy” and “bloodshot” eyes, and was directed to take a drug test immediately despite requesting representation by his union steward, his right to union representation at an “investigatory interview” (the drug test) about his possible substance abuse.

NLRB Division of Advice Finds No Weingarten Rights in Vehicle Search

Last week, the National Labor Relations Board’s Division of Advice issued a Memorandum finding that an employer’s search of a company vehicle regularly driven by an employee did not trigger the employee’s Weingarten rights. In Weingarten, the Supreme Court ruled that employees in a unionized workplace may request the presence of a union representative at an investigatory interview that the employee reasonably believes may result in disciplinary action.

NLRB Continues Its Busy Summer with Important New Decisions on Weingarten Rights, Noel Canning Issues

The National Labor Relations Board continued its busy summer over the past two weeks. First, the Board issued a decision reaffirming the importance it places on an employee’s Weingarten rights, even if they impede an employer’s investigation of an employee allegedly under the influence of drugs or alcohol. The Board also ratified all of the administrative and personnel actions it took between January 4, 2012 and August 5, 2013, the period during which recess appointees took actions invalidated by the Supreme Court’s ruling in Noel Canning.

NLRA Violation for Refusal to Allow Union Representation Prior to Drug Test

Executive Summary: The National Labor Relations Board (NLRB or Board) recently held that an employer violated the National Labor Relations Act (NLRA) when it discharged an employee who refused to take a drug test without first consulting with his union representative. See Ralphs Grocery Company and United Food and Commercial Workers Union, Local 324, 361 N.L.R.B. No. 9 (July 31, 2014). In the 2-1 decision, the Board found that the employee's suspension and subsequent discharge were "inextricably linked to his assertion of Weingarten rights," and therefore, reinstatement and backpay were warranted.
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