On August 12, 2021, Jennifer Abruzzo, the new General Counsel of the National Labor Relations Board (the Board), released Memorandum GC 21-04 in which she described various issues she plans to address during her tenure. four years. In addition to evaluating certain policies of the Trump-Era Council, GC Abruzzo plans to evaluate the Council’s application of the labor of NLRB v. J. Weingarten, 420 US 251, 262 (1975), the landmark Supreme Court case which granted unionized employees the right, upon request, to be represented in an investigative interview. Specifically, GC Abruzzo said it plans to review: (1) cases involving Weingarten in non-unionized settings, which the Board addressed (and rejected) in IBM, 341 NLRB 1288 (2004), and (2) whether there is a pre-disciplinary maintenance right to information during employer investigations, a right which the Commission denied in US Postal Service, 371 NLRB No. 7 (2021). With Weingarten As one of the NLRB’s enforcement priorities, employers should consider reviewing the way they currently investigate allegations of employee misconduct, both in unionized and non-unionized settings.
In this month’s column, we provide an overview of Weingarten rights and implications of the recent statement by GC Abruzzo regarding IBM and US Postal Service. We also offer some suggestions that employers should consider when conducting survey interviews with employees subject to Weingarten protections.