On May 3, 2017, the National Labor Relations Board unanimously denied a petition filed by a former NLRB attorney asking the Board to grant nonunion employees the right to have a representative present during investigatory interviews that could reasonably result in discipline. The petition stems from a November 15, 2016 letter by Charles S. Strickler, Jr. requesting that the NLRB use its rulemaking power to reverse the Board’s decision in IBM Corp., 341 NLRB 1288 (2004), and extend Weingarten rights to nonunion employees.
Weingarten rights stem from a Supreme Court decision in which the court held that union-represented employees have the right to a union representative during investigatory interviews. In 2000, a Democratic-controlled Board extended those same rights in a 3-2 decision to non-union employees in Epilepsy Foundation of Northeast Ohio. In IBM Corp., a Republican-controlled Board reversed Epilepsy Foundation in another 3-2 decision. Despite expectations that the law would once again change under President Obama, the Board was never presented the issue, and thus IBM Corp. survived President Obama’s administration.