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.
Articles Discussing Employee Weingarten Rights.
Weingarten Rights Not Violated; Employee Lawfully Terminated for Refusal to Take Drug/Alcohol Test
An employee’s Weingarten rights have limits, especially as to drug and alcohol testing, where time is often of the essence, an NLRB Administrative Law Judge has held. Fred Meyer Stores, Inc., No. 19-CA-206136 (July 2, 2018).
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.
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.
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.
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).
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.
Right to Union Representation Applies to Employer Referrals for Drug and Alcohol Tests, NLRB Rules
The National Labor Relations Board (“Board”), in its July 31, 2014 decision in Ralph’s Grocery Co., 361 NLRB No. 9 (2014), ruled that so-called “Weingarten rights” – the general right of a unionized employee to request union representation in connection with an investigatory interview that could lead to discipline – apply when employees request representation after an employer refers them for a workplace drug and alcohol test. Based on this ruling, the Board overturned an employee’s suspension and discharge, finding the actions were inextricably linked to the employee’s request for representation after referral for a drug test, and ordered a make-whole remedy.
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.
Right to Union Representation Applies to Employer Referrals for Drug/Alcohol Tests NLRB Rules
The National Labor Relations Board, in its July 31, 2014 decision in Ralph’s Grocery Co., 361 N.L.R.B. No. 9 (2014), ruled that so-called “Weingarten rights” – the general right of a unionized employee to request union representation in connection with an investigatory interview that could lead to discipline – apply when employees request representation after an employer refers them for a workplace drug/alcohol test. Based on this ruling, the Board overturned an employee’s suspension and discharge, finding the actions were inextricably linked to the employee’s request for representation after referral for a drug test, and ordered a make-whole remedy.