NLRB LAYING FOUNDATION FOR NONUNION WEINGARTEN RIGHTS

On September 14, 2022, the National Labor Relations Board (NLRB) issued a decision that has laid the foundation for a possible future extension of Weingarten rights to nonunion workers. This foundation for the divergence from current precedent is in line with the aggressive labor agenda General Counsel Jennifer Abruzzo has set.

In the Troy Grove Quarry decision, the Board found that an employee, who was a permanent strike replacement worker, was entitled to exercise his Weingarten rights in connection with an investigatory interview he was subject to by his employer. The Board found that by not honoring the employee’s request to have a union steward present at the interview, the employer violated of Section 8(a)(1) of the Act. The Board reasoned that the permanent strike replacements, like the employee here, were “unionized employees” for purposes of determining Weingarten rights, as those rights are statutory grounded in Section 7 of the Act. That is distinguishable from a term and condition of employment, as that can lawfully be determined by the employer. Thus, an employer does not have an obligation to bargain over the terms and conditions of employment for strike replacement workers; but those replacement workers are nevertheless entitled to Weingarten protections as they are statutorily grounded.

While the ruling did not expand Weingarten rights to workers in nonunion settings, it did bring the idea closer to the surface. Although the Board’s opinion is only applicable to strike replacement workers and not employees in nonunion settings, it highlights the likely expansion of Weingarten rights to nonunion employees soon, a long-standing goal of the General Counsel.

If you have questions concerning the Boards recent decision, please feel free to contact one of our labor attorneys by calling (501) 371-9999.