Wednesday, September 14, 2022: U.S. NLRB Ruled That Permanent Strike Replacement Workers Have Weingarten Rights, But Not While Strike Is in Progress
A U.S. National Labor Relations Board (NLRB) panel ruled that an employer violated the National Labor Relations Act (NLRA) by denying a permanent strike replacement worker (apparently on-the-job for many months and at least long enough to exhaust his probationary status and become a member of the union) his request to have a union representative present at an investigatory interview that the worker reasonably believed could result in discipline for excessive tardiness. (Troy Grove, Case Nos. 25–CA–234477, 25–CA–242081, 25–CA–244883, and 25–CA–246978).
Significantly, too, the strike at the company was over. While the Board rejected the employer’s argument that the strike replacement worker had no “Weingarten rights” because unions don’t represent the interests of permanent replacements, it nonetheless upheld the employer’s termination of the tardy employee despite the Weingarten violation. “The Weingarten right is held by the employee, not the union,” the Board stated.
Footnotes are important in this decision and defuse what alarmist headlines across the nation about this case decision suggested was a major expansion of worker rights and union access to strike replacement workers. Footnote 4 is particularly important because it reversed a portion of the NLRB Administrative Law Judge Melissa M. Olivero’s earlier decision on appeal to the Board by substantially narrowing her strike replacement Order:
“3 As a result, we have modified the Order and notice [of NLRB ALJ Olivero] to reflect that this violation does not extend to strike replacements hired during the strike. See, e.g., Ryan Iron Works, 332 NLRB 506, 509 (2000), enfd. 257 F.3d 1 (1st Cir. 2001). Relatedly, the make-whole remedy we order for this violation would also not extend to strike replacements hired during the strike who may have been affected by the Respondent’s [i.e., the company’s] implementation of the new check-in policy.”
What are Weingarten rights?
Under the National Labor Relations Act (NLRA), employees in unionized workplaces which are accused of misconduct have the right to request the presence of a union representative at an investigatory interview that the worker reasonably believes could result in discipline. This interpretation of the NLRA comes from the U.S. Supreme Court’s 1975 decision NLRB v. J. Weingarten, Inc. (20 U.S. 251). If an employee makes a valid request for union representation, the employer has three options: (1) grant the request and reschedule for a time when a representative is available; (2) deny the request and discontinue the interview; or (3) offer the employee the choice between continuing the interview without a union representative or calling off the interview. Employees who are not union-represented, however, have no Weingarten rights.
New NLRB Interpretation: The strike replacement worker had Weingarten rights, which the employer violated
In the present case, the company had likened the employee to a worker in a non-union setting. However, because the employee was a strike replacement, and it was undisputed that strike replacements were part of the bargaining unit, the NLRB reasoned that he had Weingarten rights. It is well established that a bargaining unit includes non-strikers, strikers, returning strikers, and striker replacements, the Board wrote. Accordingly, the permanent replacements here were part of the employer’s “unionized employees” for purposes of determining Weingarten protections. Thus, the employer’s analogy to non-union settings was inapposite, the Board concluded.
Furthermore, an employee’s right to union representation, on request, during an investigatory interview is a statutory right, not a term and condition of employment to be determined by the employer, the Board further noted. It added that the right extends to all bargaining-unit employees. “The right to representation is derived from the Section 7 right of employees to act in concert for mutual aid or protection, and it does not entail a bargaining obligation on the part of the employer,” the Board explained. “Instead, the Weingarten right is grounded in Section 7 and 8(a)(1) [of the NLRA] and seeks to ensure that employers carrying out investigations do not restrain or coerce employees in the exercise of their Section 7 rights,” the Board wrote. Therefore, the Weingarten right is held by the employee, not the union.
The NLRB panel then concluded that an Administrative Law Judge (ALJ) correctly found that the manager who called the worker in for a disciplinary investigatory interview did not comply with any of the Weingarten options. The manager did not offer the employee the option of not continuing with the meeting. Rather, the manager categorically rejected the worker’s request for the union steward and, instead, summoned another bargaining unit employee – who had no position with the union – as a substitute. (When he arrived at the meeting, the other employee also requested the presence of the union steward.) The employer suspended and ultimately discharged the employee following the meeting for violating its attendance policy.
In addition, the employer argued that the employee waived his Weingarten rights by agreeing to continue the meeting with his fellow employee present. Yet, the Board pointed out that the employee’s acquiescence was not voluntary because it came only after the manager refused to call the union steward and the employee had no reason to believe he could leave the meeting. Moreover, after the employee asked for the union steward, the employer was required to allow a reasonable amount of time for the steward to become available. In this case, the steward was only 25 minutes away, and therefore, could have attended the meeting within a reasonable period of time. As such, the ALJ correctly concluded that the employer violated Section 8(a)(1) of the NLRA by proceeding with the investigatory interview after denying the employee’s request for a union representative.