This Amazon Charge May Cause All Non-Union Companies To Confer 'Weingarten Rights' For Non-Union Employees (Again)
If you are, or work for, a non-union employer, you'll want to pay attention to this.
QUICK FACTS:
Weingarten Rights, which currently apply to union-represented employees, are the right to have a union-representative or co-worker present during an investigatory interview with management.
In the 1990s, the National Labor Relations Board (NLRB) conferred Weingarten Rights to all non-union employees under the jurisdiction of NLRB.
The NLRB later rescinded Weingarten Rights in the early 2000s.
In her August 12, 2021 Mandatory Submissions for Advice memo, NLRB General Counsel instructed NLRB regions to submit cases involving “the applicability of Weingarten principles in non-unionized settings...”
On Friday, a twitter post alleged that a (presumably) pro-union employee at Amazon was denied “Weingarten Rights” and that unfair labor practice charges would be forthcoming.
Why it matters: If charges are filed with the NLRB, and the facts align with the allegation, the NLRB may use Amazon to set a precedent for all non-unionized employers under the NLRB’s jurisdiction to confer Weingarten Rights to non-unionized workers.
Details:
It would appear Amazon will be used to expand Weingarten Rights for non-union employees (again).
What are Weingarten Rights?
Weingarten Rights, as explained by the National Labor Relations Board, is the “right of union-represented employees, upon request, to have their representative present during an interview that the employee reasonably believes could lead to discipline.”
The NLRB goes on to further explain:
An employee’s requested representative, which may be a union steward, business agent or officer, or fellow employee, is often referred to as a “Weingarten representative.” Weingarten representatives are entitled to provide advice and active assistance to employees during investigatory interviews. Employees’ right to request their representatives are frequently referred to as “Weingarten rights.”
The NLRB’s words “upon request” are important as it is the employee, not the employer, who must invoke Weingarten Rights during an investigatory interview.
Additionally, Weingarten Rights are only applicable during investigatory interviews.
If an employer determines that discipline is warranted without interviewing the employee being disciplined, unless otherwise agreed to with a union (or by an established past practice), Weingarten Rights—or the providing a union representative, or other employee witness, is not required.
Historically, except for a brief period, Weingarten Rights have only been applicable in unionized workplaces.
During the 1990s, however, the NLRB under then-President Bill Clinton, conferred Weingarten Rights to all non-union employees under the NLRB’s jurisdiction.
Then, in 2004, the NLRB under then-President George W. Bush reversed course and rescinded Weingarten Rights, leaving them only available to union settings.
Under current law, Weingarten Rights are still only available to unionized employees.
However, that may soon change.
Weingarten Rights in Non-Union Workplaces Again?
Last year, the NLRB General Counsel Jennifer Abruzzo Mandatory Submissions for Advice memo, NLRB General Counsel instructed NLRB regions to submit specific types of cases to evaluate for the purposes of changing the application of the National Labor Relations Act.
Among her multitude of the types of cases she cited in her August memo was this (on p. 7):
"Cases involving the applicability of Weingarten principles in non-unionized settings as enunciated in IBM Corp., 341 NLRB 1288 (2004)"
Is Amazon being used to set precedents?
Like the charges filed last week against Amazon in Bessemer, Alabama challenging an employer’s right to hold mandatory meetings with employees (unions call them “captive audience” meetings), Amazon may be being used by unions and the NLRB to establish precedents that may affect all employers under the NLRB’s jurisdiction in the future.
Here’s how:
In a Friday night tweet, a group calling itself the Coalition to Defend Amazon Workers posted an alleged event wherein a (presumed) union supporter was denied “Weingarten Rights” during an investigative interview.
Then, in the same tweet, the group claimed the independen Amazon Labor Union would be filing charges with the National Labor Relations Board.
Here’s the tweet:
Last night @amazon unlawfully denied @peace4every0ne Weingarten Rights (right to co-worker witness during HR investigatory meeting).Today @amazonlabor will be filing Unfair Labor Charges @NLRB @NLRBGC. #ExpandWeingartenRights #UnionStrong
The Coalition to Defend Amazon Workers then followed with another tweet:
⏰ for @NLRB @NLRBGC provide all american workers with Weingarten Rights and the right to due process at work. We demand the National Labor Relations Board immediately overule IBM Corp., 341 NLRB 1288 (2004). [Emphasis added.]
Assuming the Amazon Labor Union—or any individual1—follows up on the threat to file an unfair labor practice for Amazon’s alleged “unlawfully” denying the employee a “co-worker witness,” the NLRB will conduct an investigation at the regional level.
If the facts are consistent with the allegation in the first tweet, the NLRB may rule that the non-unionized employee was denied the right to have a witness present during the investigatory interview and the NLRB regional office may rule that Amazon violated the law.
If the regional NLRB office decides Amazon violated the law and it is appealed to NRLB in Washington, the NLRB could confirm the regional office’s ruling—which is more than likely in this case, given the General Counsel’s August memo—and, as a result the application of Weingarten Rights would, once again, apply to all non-union employees throughout the United States.
However, this could take months to resolve.
Additionally, there is a remote possibility that Amazon could potentially settle the case at the regional level, without it being decided upon by the National Labor Relations Board in Washington.
In the off-chance that occurs, the NLRB (and unions) would need to find another case to set a national precedence.
In the meantime, though, it would appear that non-union companies will eventually be required to confer Weingarten Rights for non-unionized workers again.
Stay tuned.
Note 1: LaborUnioNews.com, including this substack, is for informational purposes only and does not constitute legal advice. In all cases involving the interpretation and application of law, readers should seek counsel from an attorney.
Note 2: For more news and information about today’s unions, go to LaborUnionNews.com
It is often assumed that only unions are permitted to file unfair labor practice charges. This is not the case. Individuals, other employee representatives, as well as employers can file unfair labor practice charges.