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Employment Practices

Nonunion Employees Gain Right to Representation during Investigatory Interviews

Paul Siegel | August 1, 2000

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This article discusses a recent National Labor Relations Board decision holding that nonunion employees have the right to representation during an interview that might lead to disciplinary action and its potential impact on the workplace.

In a decision with the potential to impact the workplace investigation practices of all nonunionized employers, the National Labor Relations Board (NLRB) has ruled that nonunion employees have the right to a representative during an interview that might reasonably lead to disciplinary action. In a close decision issued July 10, 2000 (Epilepsy Foundation of Northeast Ohio, 331 NLRB No. 92), the Labor Board found that the so-called Weingarten rights of unionized employees also apply to employees not represented by a union. Given the scope of this decision, all employers should be advised about what it means and how it will affect the way they conduct employee investigations.

What Are Weingarten Rights?

In 1975 the U.S. Supreme Court upheld a decision by the Labor Board that employees have a right, protected by Section 7 of the National Labor Relations Act, to insist on union representation during an investigatory interview by the employer, provided the employee "reasonably believes" the interview "might result in disciplinary action." See NLRB v J. Weingarten Inc., 420 U.S. 251 (1975).

The Supreme Court explained that this right arises from Section 7's "guarantee of the right of employees to act in concert for mutual aid and protection." The right has been applied to unionized workforces and is limited to situations in which an employee specifically requests representation. An employer is not required to advise the employee of this right in advance, and it applies only to investigatory meetings and not to meetings when, for example, the employer communicates a decision regarding a disciplinary matter.

Whether the belief that discipline might result from the interview is reasonable is based on "objective standards" and on an evaluation of all the circumstances. If the employee does have a reasonable belief that discipline may result from the interview, the employer must either grant the request, dispense with the interview, or offer the employee the option of continuing the interview unrepresented or not having an interview. If an employer refuses to allow union representation but goes ahead with the interview, or if the employer disciplines the employee for refusing to participate in the interview after denying the employee union representation, the employer has committed an unfair labor practice in violation of the National Labor Relations Act (NLRA).

Since the Supreme Court's 1975 decision, the Labor Board has changed directions on whether Weingarten rights apply to employees who are not unionized. In 1982 the Board decided the case Materials Research Corporation, 262 NLRB 1010, which held that Weingarten rights applied to nonunion employees. Then, in the 1984 decision of Sears Roebuck & Co., 274 NLRB 230, the Board reversed its position and held nonunion employees were not entitled to Weingarten rights. In 1988 the Labor Board reiterated its holding that Weingarten rights are confined to unionized employees only in the case of E.I. du Pont de Nemours & Co., 289 NLRB 627.

The Epilepsy Foundation Case

In the July 10 Epilepsy Foundation decision, the Labor Board concluded that its earlier rulings in the E.I. du Pont and Sears cases were inconsistent with the Supreme Court's rationale in the Weingarten case and with the purposes of Section 7 of the NLRA to guarantee employees the right to engage in concerted activity for their mutual aid and protection.

In this case, Arnis Borgs was an employee working on a research project concerning the school-to-work transition for teenagers with epilepsy. Borgs was not represented by a union. In early 1996, Borgs and a co-worker, Ashraful Hasan, prepared a memorandum to the foundation's executive director. The memorandum was critical of their supervisor, Rick Berger, explaining why they felt his supervision was no longer needed on the project. The executive director directed Borgs to meet with her and Berger about the memo.

Borgs told the executive director that he felt intimidated by the prospect of meeting alone with Berger and the executive director because in a prior meeting, they had interrogated and reprimanded him for discussing salary information with co-workers. He requested meeting with the executive director only. Upon refusal of this request, he asked that Hasan be present at the meeting, which was also refused. After persisting to express opposition to meeting alone with Berger and the executive director, Borgs was sent home for the rest of the day. The next day he was dismissed for his refusal to meet the previous day, which the executive director characterized as gross insubordination.

Following existing case law precedent, the Administrative Law Judge (ALJ) hearing the case found that the discharge did not violate the NLRA because the Weingarten right to representation did not apply to nonunionized employees. However, the Labor Board subsequently reversed the ALJ's opinion and overruled the E.I. du Pont decision, finding unlawful the termination of Borgs for insisting on having a co-worker present at the meeting. As a result, the employer was ordered to offer Borgs reinstatement and back pay.

The Labor Board explained that the right to representation recognized in Weingarten was grounded in Section 7 of the NLRA, which guarantees the right of employees to engage in concerted activity for purposes of mutual aid and protection. Flowing from this is the right to act together to address the imposition of unjust discipline. This right to representation did not arise from Section 9 of the Act, which recognizes the union's right to act as the employees' exclusive bargaining representative. Since Section 7 rights apply to all employees, whether unionized or not, the Weingarten rights to representation should apply to nonunionized employees as well.

Although employers traditionally have had the right to deal individually with unrepresented employees, the Labor Board was not persuaded that nonunion employers would be forced to deal with the equivalent of a labor organization. According to the Board, an employer will not be forced to "collectively bargain" with the employee's representative, and the employer is free to forego the interview altogether.

Nor was the Board swayed by the contention of one of the dissenting Labor Board members that the ruling would present an "unknown trip wire" for nonunionized employers unaware of an employee's right to representation under the Weingarten principle. The Board majority said this concern was based on speculation that employers would be ignorant of the right, and in any event, ignorance cannot justify a violation of the NLRA.

Applying the Decision to the Nonunion Workplace

In the dissenting opinion, Board Member Hurtgen correctly noted that managers and supervisors at nonunionized companies will not realize that their employees have the right to representation. [Note that the right to representation applies to "employees." This does not include "supervisors" or other management personnel as defined by the National Labor Relations Act, Section 2(11).]

Weingarten rights are part of the fabric of the unionized workplace, but these rights likely are unfamiliar to the nonunion employer. As a result, employers must be alerted to this decision and the impact it will have on current employment practices concerning investigations and the imposition of disciplinary action.

The Implications for Employers

The Epilepsy Foundation decision will impact employer activities with respect to investigations of employee misconduct. Specifically, employers should consider the following issues in developing a policy for handling Weingarten requests for representation.

  • The Weingarten rule applies to any employee interview that may reasonably be believed to result in discipline. This would include interviews in connection with:
    • Sexual harassment complaints or allegations of unlawful discrimination
    • Suspicion of violation of workplace policies
    • Investigation of insubordinate conduct, workplace violence, or other inappropriate behavior
    • Inquiries into theft or misappropriation of goods or funds
    • Investigations of suspected violations of substance abuse policies, etc.

    The right to have a representative present comes into play when an employer brings an employee into a situation that could reasonably be construed as an investigatory interview regarding conduct that could implicate the employee and result in discipline against him or her.

  • There is no right to representation if there is no possibility that the employee being interviewed will be disciplined as a result of the interview, or if the meeting does not constitute an investigatory interview (e.g., if the employee is simply being told the results of an investigation and the employer's decision). In other words, if the meeting is to actually execute disciplinary action (provide the warning, discharge the employee, etc.), there is no right to representation.
  • The employer need not affirmatively inform the employee of any right to representation before beginning the interview. There is no "Miranda" requirement to read the employee his or her rights. If the employee requests the presence of a co-worker, the employer should either: (1) forego the interview, (2) grant the employee's request, or (3) offer the employee the choice of continuing without representation or not being interviewed.
  • An employer must allow the employee a reasonable opportunity to speak with a co-worker representative prior to the investigative interview.
  • The right to representation by a co-worker flows from the right of employees to engage in concerted activity for purposes of mutual aid and protection under Section 7 of the NLRA. By definition, this right involves employee activity, thus precluding a request for representation by an outside attorney, government agent, or union official.
  • At the interview, the representative may seek to ameliorate any culpability of the employee or may suggest alternative inquiries or solutions. However, the employer is not required to bargain with the representative, nor is the employer required to make concessions or compromise with the representative.
  • If the co-worker specifically requested by the employee is not available at the time of the interview, the employee may be given the opportunity to have another available co-worker present. If, at that point, the employee refuses the available co-worker, the employer is not required to delay the interview and may proceed without violating the Act.
  • Failure to grant Weingarten rights is a violation of the National Labor Relations Act. The National Labor Relations Board has exclusive jurisdiction over enforcement of the Act. The sole remedy is an unfair labor practice proceeding filed with the Board. The Board is empowered to order make-whole remedies, including reinstatement, back pay, and cease-and-desist orders.

The Weingarten-Epilepsy Foundation rule may have its most profound implications in an employer's investigation of highly sensitive workplace matters, such as sexual harassment allegations. The dilemma for employers is that they must conduct full, complete, and confidential investigations of any such claims. Now the employee who is the subject of the investigation may be entitled to bring in another employee with whom the employer may not feel comfortable discussing the sensitive nature of the incident and breaching the shield of confidentiality.

How employers can balance these and other competing rights and interests implicated in this pronouncement will require an assessment of current workplace investigation policies and practices, as well as other laws and regulations that may govern the investigation, discipline, and termination processes. Employers should seek the advice of employment counsel in any such policy review and development, or when confronted with a request for representation in which the employer is unsure of its rights and obligations.

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