"Double Protection--
A nonunion employee can have a co-worker present at investigatory interviews"
by Richard S. Rosenberg

In 1935, Congress enacted the National Labor Relations Act to establish a legal framework for union management relations. The Act has been the cornerstone of U.S. labor law for over sixty-five years. The five member National Labor Relations Board ("NLRB") in Washington, D.C. administers the law. There are literally hundreds of volumes of NLRB decisions in which the Board defines the rights and responsibilities of unions and management alike in the context of a union organizing effort or in collective bargaining once employees have selected a union. Most business people are completely unaware that NLRB rulings also have very significant application to the day-to-day personnel decisions of non-union employers. This very common misunderstanding has led many unsuspecting non-union employers to become embroiled needlessly in costly NLRB litigation. A recent NLRB case in a non-union setting demonstrates the very significant reach of the NLRB where no union is on the scene. In Epilepsy Foundation, 331 NLRB No. 92 (July 10, 2000), the NLRB defined the rights of non-union employees during a routine employer investigation of workplace misconduct.

Background. In 1975, the U.S. Supreme Court confirmed that unionized employees have the legal right to be accompanied by a union representative in any investigatory interview with management where the employee reasonably believes that discipline may result. Commonly known as "Weingarten" rights (after the case in which the legal principal was created), the Supreme Court stated "A single employee confronted by an employer investigating whether certain conduct deserves discipline may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors. A knowledgeable union representative could assist the employee by eliciting favorable facts, and save the employer production time by getting to the bottom of the incident occasioning the interview." NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975).

In 1982, the NLRB extended Weingarten rights to the non-union setting. Materials Research, 262 NLRB 1010 (1982). However, in 1985, the Board overruled its Materials Research decision and once again limited Weingarten rights solely to unionized employees. Sears, Roebuck & Co., 274 NLRB 230 (1985). This has been the law until just a few weeks ago. In Epilepsy Foundation, the NLRB once again ruled that non-union employees have Weingarten rights. Thus, non-union employees have the legal right to insist upon the presence of a co-worker in any investigatory interview where the employee reasonably believes discipline may result.

The facts of the Epilepsy Foundation case are fairly common. In February 1996, Arnis Borgs, an employee of the Epilepsy Foundation, was directed by the Foundation's Executive Director to meet with her and Borgs' immediate supervisor. The meeting concerned two memoranda issued by Borgs and a co-employee, Ashraful Hasan, critical of his supervisor. Borgs refused to meet alone with these managers, and asked if he could either meet alone with the Executive Director or be accompanied by his co-worker Hasan. Both requests were refused. When Borgs continued to express his opposition to meeting alone with his managers, he was sent home for the day. The following day, Borgs was terminated for refusing to participate in the meeting.

Borgs filed charges with the NLRB. After a trial on the matter, the NLRB ruled that terminating Borgs for insisting upon a co-worker's presence at the meeting was a violation of the NLRA. The NLRB ordered that Borgs be reinstated and compensated for all lost wages since his termination. In doing so, the Board used the case to reconsider whether Weingarten should once again be extended to non-union employees. "[T]he Act generally affords employees the opportunity to act together to address the issue of an employer's practice of imposing unjust punishment on employees," the NLRB stated. When one employee requests the presence of a co-worker during a meeting that the employee reasonably believes may lead to discipline, that employee is exercising a right under the Act.

Contours of the Decision. The Board did not address any specific issues related to Weingarten rights beyond an employee asking for a co-worker to be at the meeting. Future cases may address whether Epilepsy Foundation will be extended to situations where an employee asks for a non-employee (e.g., attorney or union representative) to accompany the employee. The following questions address the impact of the Epilepsy Foundation case.

´ Do Weingarten rights apply if none of our employees are unionized?

Yes. Weingarten rights now apply to all private sector employees whose employer is subject to the jurisdiction of the National Labor Relations Board. However, it does not apply to supervisors or managers who may be the subject of an investigation.

´ Must I inform the employee of this Weingarten right or ask the employee if the employee wishes to be accompanied by another employee?

No. Employers are under no obligation whatsoever to advise an employee of Weingarten rights, or ask an employee whether the employee wishes to be accompanied by another employee during an investigatory interview. Weingarten rights arise only if an employee asks for them.

´ Do employees have this right in every meeting with management?

No. These rights are available only with respect to investigatory interviews that the employee reasonably believes may lead to discipline. Meetings to announce a disciplinary decision or for other business matters unrelated to discipline are not impacted by their decision. However, employers should not attempt to mislead an employee as to the purpose of an interview. If a meeting is merely to inform the employee of the disciplinary action that the employer has decided to take, the employee is not entitled to be accompanied, even if the employee so requests.

´ Does Weingarten apply to ordinary questions a supervisor may pose to an employee during the course of a workday?

No. Weingarten does not apply to routine questions regarding work performance or ordinary "run of the mill" workplace discussions.

´ Does an employee have the right to meet with a co-worker prior to starting the investigatory interview?

Yes. Under Weingarten, an employee has a right to consult with the chosen co-employee prior to the interview.

´ Does an employee have the right to select any co-employee?

Generally yes. However, the employee may not insist on a particular co-employee being present, if that employee is unavailable. However, it is advisable to postpone the meeting for a brief period if the requested co-worker will be available at another time.

´ What if management does not wish to interview an employee with a co-employee present?

Management may refuse to hold the interview. The employee then has the choice of either refusing to be interviewed or proceeding without a co-employee being present. However, management may not require the employee to be interviewed without the co-employee present. Generally, it is not advisable to act without hearing the employee's version of the events.

´ What may the co-worker do during this meeting?

Very little. If a co-employee is present during the investigatory interview, he/she is there merely to advise the employee and act as an observer. The co-employee is not permitted to bargain with management; disrupt the interview, or attempt to steer the investigation off track. If the co-employee attempts to interfere with the investigation (e.g., objecting to questions, telling the employer not to repeat questions, or instructing the employee not to answer), the employer has the right to ask the co-employee to leave the meeting.

´ Does Weingarten give an employee the right to refuse to answer questions?

No. The employee's refusal to cooperate certainly can be a factor in deciding what action to take.

´ Can management take action against an employee who asserts Weingarten rights?

No. Any attempt at retaliation is a violation of the Act. The Board has the authority to order reinstatement, backpay, reversal of a suspension, withdrawal from a personnel file of a written warning, etc. In addition, in all cases in which a violation is found, the employer will be ordered to post a notice for sixty days advising employees that it will not engage in such unlawful conduct in the future.

Even if you don't consider a union organizing effort to be a high probability, the Epilepsy Foundation ruling demonstrates why management needs to understand its rights and responsibilities under the Act when carrying out day-to-day personnel decisions. In the face of ever declining union membership, the NLRB has been busy trying to reinvent itself as a relevant labor law watchdog agency. In doing so, the NLRB has been looking at a host of common personnel policies, such as rules restricting access to the workplace by off duty employees, rules pertaining to confidentiality of compensation and other business information, the extent to which employees can use e-mail and employer provided computer equipment for personal matters, just to name a few. In light of these changing rules, every employee handbook or personnel policy manual ought to be reviewed by a labor law expert to ensure compliance. Management training on the vagaries of the Act is another way to reduce the likelihood of costly mistakes.

Richard S. Rosenberg is a founding partner of the Universal City management labor law firm Ballard, Rosenberg, Golper & Savitt. Mr. Rosenberg can be reached through the firm's website www.brgslaw.com or by e-mail at rrosenberg@brgslaw.com.