IN A DECISION WITH THE POTENTIAL TO IMPACT the workplace investigation practices of all nonunionized employers, the National Labor Relations Board has ruled that nonunion employees have the right to a have a representative present during an interview that might reasonably lead to disciplinary action. Ruling 5-4, 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 investigations of non-supervisory employees. [Epilepsy Foundation of Northeast Ohio, 331 NLRB No. 92.]

What are Weingarten rights?
In 1975, the United States Supreme Court upheld a decision by the Labor Board that employees have a right to insist upon union representation during an investigatory interview by the employer, provided the employee "reasonably believes" the interview "might result in disciplinary action." NLRB v. J. Weingarten Inc., 420 U.S. 251 (1975). The Supreme Court explained that this right arises from the law's "guarantee of the right of employees to act in concert for mutual aid and protection." The Weingarten right has been applied to unionized workforces where 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 employee's belief that discipline might result from the interview is reasonable is based on "objective standards" and upon an evaluation of all the circumstances. If the employee does have a reasonable belief that discipline may result from the interview and requests a representative, 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 NLRA.

The Decision in the Epilepsy Foundation Case
In the early 1980's, the Labor Board had applied Weingarten rights to nonunion employees for a brief period. However, since 1984 the Board had held nonunion employees are not entitled to Weingarten rights. In the Epilepsy Foundation decision, the Labor Board concluded that its earlier rulings were inconsistent with the Supreme Court's rationale in the Weingarten case and with the purposes of Section 7 of the NLRA.

The charging party in the Epilepsy Foundation case was a nonunion employee who, along with a co-worker, had prepared a memorandum to the foundation's Executive Director outlining criticisms of their supervisor. The Executive Director requested a meeting with the employee and the supervisor to discuss the memo. The employee told the Executive Director he felt intimidated by the request and asked that the co-worker also be present at the meeting. His request was denied, after which he again expressed opposition to the meeting. He subsequently was dismissed for gross insubordination.

The employee filed a complaint with the National Labor Relations Board charging the employer with an unfair labor practice. Following existing precedent, the Administrative Law Judge found the discharge did not violate the NLRA because the Weingarten right to representation did not apply to nonunionized employees.

The Labor Board, however, reversed the ALJ's opinion and overruled the existing case law. The Board found that the right to representation is 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. Since Section 7 rights apply to all employees, whether unionized or not, the Board found the termination was unlawful and ordered the employer to offer reinstatement and back pay.

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. Under this ruling, 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 and confidential nature of the incident.

How employers balance these and other competing rights and interests will require an assessment of current workplace investigation policies and practices, as well as other laws and regulations which 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.

THE IMPLICATIONS FOR THE NONUNION WORKPLACE

Nonunion employers are likely to be unfamiliar with the Weingarten rule of co-worker representation at investigatory or disciplinary interviews. Employers must be alerted to this decision and the impact it will have on employ-ment practices concerning investigations and disciplinary action.

While it is an open question whether the Courts of Appeals will enforce the Board's order in the Epilepsy Foundation case, there is no question as to the position the General Counsel of the NLRB and the Labor Board regional offices will take. An employer's failure to adhere to the Board's holding in Epilepsy Foundation with respect to investigations of employee misconduct may well result in an unfair labor practice charge and subsequent litigation before the NLRB. Specifically, employers should consider the following in developing a policy for handling Weingarten requests for representation:

• The Weingarten rule applies to any employee interview which may reasonably be believed will give rise to discipline, including 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 inter-viewed will be disciplined as a result of the interview, or if the meeting does not consti-tute 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 does not extend to representation by an outside attorney, government agent, or union official.
• 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.