NLRB Recognizes Weingarten Rights For Strike Replacement Employees

• Published date: 07 October 2022
• Subject Matter: Employment and HR, Employee Rights/ Labour Relations
• Law Firm: Ogletree, Deakins, Nash, Smoak & Stewart
• Author: Mr Jesse R. Dill

In a decision significant to employers that employ strike replacement employees or that may consider hiring strike replacement employees, the National Labor Relations Board (NLRB) found that such employees hold the right to request the presence of a union representative during an investigatory interview that may lead to discipline. In Troy Grove a Div. of Riverstone Group Inc., 371 NLRB No. 138 (September 14, 2022), the NLRB rejected Troy Grove's argument that strike replacement employees were analogous to workers in a non-union setting who do not maintain such rights.

Background

Troy Grove was a mining aggregate company with two quarries at which a local of the union, the International Union of Operating Engineers, represented a unit of employees. In May 2016, the company's and union's collective bargaining agreement expired. Almost two years later, in March 2018, the employees voted to begin a strike. In May 2018, after the strike began, Troy Grove hired Matt Kelly as a replacement worker.

On August 14, 2018, the employer interviewed Kelly regarding a series of attendance violations. During the interview, Kelly requested a union steward before the interview began. The employer rejected that request and offered to allow another employee attend the interview. That employee did not hold a position in the union but attended Kelly's interview. After the interview, the employer terminated Kelly's employment because of his repeated tardiness.

The NLRB's Analysis

The Board affirmed the administrative law judge's decision that Troy Grove had impermissibly denied Kelly his right for a union representative to attend his investigatory interview, even though he had been a strike replacement employee. An employee's right to union representation, on request, during an investigatory interview is commonly referred to as Weingarten rights and is based in the Supreme Court of the United States' holding in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975).

In Weingarten, the Supreme Court permitted the NLRB to construe Section 7 of the National Labor Relations Act (NLRA) to grant a represented employee the right to have a union representative present for an investigatory interview where the employee has a reasonable belief it may lead to discipline. In these circumstances, after an employee requests a union representative, the employer may either grant the request, discontinue the interview, or offer the employee the choice of continuing the interview without a union...