Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration. Our blog is exploring a different aspect of the memo each day during the first three weeks of December. Click here, here, here, here, here, here, here, here, & here to find prior posts.
While many employers were surprised by the Obama Board’s inability to overturn IBM Corp., 341 NLRB 1288 (2004), and extend Weingarten rights to non-union employees, the Obama Board powerfully expanded the scope of Weingarten rights in a number of areas, including significantly diminishing a unionized-employer’s ability to conduct reasonable suspicion drug testing in Manhattan Beer Distributors, 362 NLRB No. 192 (2015). In Manhattan Beer, the Obama Board majority ruled that a beer distributor violated the NLRA by terminating a unionized employee for refusing to take a drug test without first providing him with a reasonable opportunity to consult in person with an authorized union representative, despite the fact that the employee was able to consult with a union representative via telephone. Member Johnson’s dissent outlines the numerous ways in which the decision substantially interferes with an employer’s interest in maintaining a safe and drug-free workplace.
The Obama Board likewise expanded Weingarten rights beyond any prior precedent in Howard Industries, Inc., 362 NLRB No. 35 (2015), broadening the range of permissible conduct by union representatives in Weingarten interviews to include allowing union representatives to assist witnesses by providing scripted answers. In Fry’s Food Stores, 361 NLRB No. 140 (2015), the Obama Board bolstered Weingarten rights further by finding that Weingarten requires that an employee has the right to consult with a union representative not only during the investigatory interview but also before the interview, even without the employee requesting such a meeting.
Fortunately for employers, in GC Memo 18-02, the NLRB’s new General Counsel previews that the General Counsel’s office will seek to nip the Obama Board’s Weingarten overreach in the bud, requiring Regions to submit to the Division of Advice any matters involving the range of permissible conduct by union representatives in Weingarten interviews and matters involving the application of Weingarten in the drug-testing context. The new General Counsel also rescinded the initiative to overturn IBM Corp. and extend Weingarten rights to non-union employees.
The General Counsel’s change in direction on Weingarten rights is certainly a gift to employers, but GC Memo 18-02 leaves one notable Weingarten decision on the nice list. Specifically, the GC Memo fails to mention the Obama Board’s controversial decision in E.I. Dupont de Nemours & United Steel Workers Local 699 to allow dishonest employees to receive reinstatement with backpay if an employer violates his or her Weingarten rights, effectively receiving “get out of jail” free cards for any misconduct that occurs during an unlawful interview. 362 NLRB No. 98 (2015). Alas, while GC Memo 18-02 previews many long-awaited gifts to employers, the Trump Board’s revisiting of E.I. Dupont remains on every unionized-employer’s holiday wish list. Maybe next year.