NLRB’s General Counsel Signals Possible Expansion of ‘Weingarten’ Rights
On Aug. 12, 2021, newly appointed National Labor Relations Board (the Board) General Counsel Jennifer Abruzzo issued Memorandum GC 21-04 in which she outlined various issues that she plans to review during her four-year term.
In addition to assessing certain Trump-Era Board policies, GC Abruzzo anticipates evaluating the Labor Board’s application of N.L.R.B. v. J. Weingarten, 420 U.S. 251, 262 (1975), the landmark Supreme Court case which granted unionized employees the right, upon request, to representation during an investigatory interview.
More specifically, GC Abruzzo stated that she plans to examine: (1) cases involving Weingarten rights in nonunion settings, which the Board addressed (and rejected) in IBM, 341 NLRB 1288 (2004), and (2) whether there exists a pre-disciplinary interview right to information during employer investigations, which right the Board denied in U.S. Postal Service, 371 NLRB No. 7 (2021).
With Weingarten principles as one of the enforcement priorities for the NLRB, employers should consider re-examining how they currently conduct investigations of alleged employee misconduct, both in union and nonunion settings.