A recent decision issued by the National Labor Relations Board (the "Board") significantly alters the manner in which non-union employers are permitted to interview their employees. It is a decision that non-union employers ignore at their peril under certain circumstances, and, accordingly, every non-union employer should be familiar with it.

In the unionized workplace, it is commonly understood that unionized employees are entitled to have a union representative present during an investigative meeting which the employee reasonably believes may result in disciplinary action. These rights are known as "Weingarten Rights," and were established by the United States Supreme Court in NLRB v. Weingarten, 420 U.S. 251 (1975). For the past 15 years, the Board has held that non-union employees are not entitled to Weingarten Rights. However, on July 10, 2000, the Board overruled its prior case authority and held that employees not represented by a union are entitled to have a co-worker present at an investigative interview which the employee reasonably believes may result in disciplinary action. Epilepsy Foundation of Northeast Ohio, 331 NLRB No. 92.

Case Background and Decision

In Epilepsy Foundation, two non-union employees of the Epilepsy Foundation, Arnis Borgs and Ashraful Hasan, prepared memoranda directed to their supervisor and the Executive Director of the Foundation, which were critical of their supervisor. The Executive Director subsequently asked Borgs to meet with her and the supervisor. Borgs first asked if he could meet with the Executive Director alone. This request was rejected. Borgs then asked if Hasan, his co-worker, could attend the meeting with him. The Executive Director refused this request as well. When Borgs insisted that Hasan be permitted to attend the meeting, he was sent home. The following day, Borgs was informed that his employment was terminated because his refusal to attend the meeting without Hasan constituted gross insubordination.

Borgs then filed an unfair labor practice charge with the Board asserting his termination violated Section 8(a)(1) of the National Labor Relations Act (the "Act"). Reversing the decision of the administrative law judge, the Board held that Borgs had a statutory right to have a co-worker present at the investigative meeting based on Section 7 of the Act. It therefore found that Borgs’ termination for refusal to attend the meeting without a co-worker was improper and ordered that he be reinstated and receive back pay. Section 7 of the Act states that "[e]mployees shall have the right … to engage in … concerted activities for the purpose of . . . mutual aid or protection." The Board reasoned that, regardless of the non-union status of an employee, his/her request to have a co-worker present at an investigative interview implicates the right of employees to act together for their mutual aid or protection. Moreover, the Board unsympathetically discounted the potential trap set for unsuspecting non-unionized employers by this holding and stated:

Our colleagues speculate that employers in non-unionized settings will be completely unaware of an employee’s right to a Weingarten representative. We do not agree with this speculation. In any event, we fail to understand how an employer’s ignorance of employee rights provides a justification for denying those rights to employees.

Issues Concerning Weingarten Rights

The Epilepsy Foundation has already indicated it intends to appeal the Board’s ruling. Ultimately, the application of Weingarten to non-union employees may be resolved by the United States Supreme Court. In the meantime, it would not be surprising, depending on whether there are any changes to its political makeup, for the Board to reverse itself as it has done on this issue twice before. For now, however, non-unionized employers must familiarize themselves with the parameters of an employee’s Weingarten Rights in order to avoid running afoul of the Board’s ruling. The following sets forth some of the important issues that should be considered concerning application of Weingarten Rights.

What Are Weingarten Rights?

Weingarten Rights consist of an employee’s right to have a representative present during an investigatory interview which the employee reasonably believes may result in disciplinary action. Several key questions must be addressed in order to fully understand how and when these rights are applicable.

What Constitutes An "Investigative Interview?"

Weingarten Rights are only applicable where an employee reasonably believes that the discussion between the employee and employer may result in disciplinary action. According to Board precedent, this is an objective standard which takes into account all circumstances including the location and timing of the interview, the number of employer representatives present during the interview, the events proceeding the interview, the employer’s statements preceding the interview and the employee’s prior disciplinary record. Interviews which typically fall within this definition include discussions with an employee accused of violation of company policy, misconduct or unsatisfactory job performance. The Board has broadly interpreted this standard to include discussions with an employee about improving performance and merely asking an employee what could be done to improve his/her production. In contrast, the Board has found that simply informing an employee of a disciplinary decision which has already been made does not constitute an investigative interview. However, the Board has narrowly construed this distinction. For instance, the Board has found that Weingarten Rights are implicated where an employer seeks facts to support the disciplinary action already taken or requests that the employee admit wrongdoing.

Does An Employer Have To Inform Employees of Their Weingarten Rights?

Employers have no obligation to inform employees of their rights under Weingarten. Nor do they have any obligation to offer representation during an investigative interview. Rather, the employee must make an affirmative request for a co-worker. As a result, until these rights become better known, non-unionized employers will probably not be faced with a large number of requests for co-worker representation. However, employees may occasionally invoke their Weingarten Rights unknowingly, simply because they do not want to meet with their supervisor alone. In either case, the same entitlements are implicated.

What Are An Employer's Options Following A Request?

Following a request for co-worker representation, an employer may grant the request and proceed with the interview or deny the request and dispense with the interview. However, no adverse action may be taken against the employee for refusing to proceed with the interview without the presence of a co-worker. If the employee declines to be interviewed alone, the employer may explain to the employee that he/she has the choice of voluntarily proceeding with the interview absent co-worker representation or not participating in the interview at all, in which case the employee would lose the opportunity to provide any input into the investigation.

An interesting question is raised by the California Supreme Court’s ruling in Cotran v. Rollins Hudig Hall International, where an employee chose not to proceed with an interview absent the presence of a representative and was ultimately terminated for cause. As discussed in our Employment Law Commentary in January 1998, the Court in Cotran held that an employer’s reasonable belief based on a thorough investigation was sufficient to establish "good cause" for an employee’s termination. In this connection, an employee could assert that an investigation in which the employee did not participate cannot provide the basis for an employer’s reasonable belief that the employee engaged in misconduct. In order to minimize this risk, an employer should either allow the co-worker to attend the interview or, at a minimum, document and obtain the employee’s written acknowledgment that it offered to meet with the employee and that the employee refused to do so without a representative present.

Who Can Be an Employee’s Representative?

Applying the Board’s rationale that a co-worker’s involvement in an investigative interview implicates protected concerted activity under the Act, it follows that the employee’s representative must be a co-worker. Thus, the employee should not be entitled to an attorney or other non-employee representative (i.e., family member or friend). Moreover, where an employee selects a co-worker who is not available, the employer is not required to postpone the interview. In this regard, an employee cannot select an unavailable co-worker as a tactic to delay the investigation. On the other hand, where the chosen co-worker is available, the employer cannot insist on a different co-worker that is more to its liking.

What Can the Representative Do?

Prior to the interview, the employer is not required to permit the employee and co-worker to consult during work hours, provided the employer has given advance notice of its request for the interview and there has been adequate time for the employee and co-worker to talk outside of work. However, where the notice provided by the employer does not permit off hours consultation, the Board has held that the employer must allow the employee to meet with the co-worker during work hours. The co-worker is not entitled to pay for time spent meeting with the employee or participating in the interview.

During the interview, the representative is permitted to ask questions and participate in the discussion. However, the representative is prohibited from interfering with the interview process. For example, interpreting Weingarten, the Board has found it improper for a union representative to instruct an employee under investigation to refuse to answer questions. If a co-worker obstructs the interview, the employer may terminate the meeting and proceed with the investigation and/or disciplinary action without further input from the employee.

What If Weingarten Rights Are Not Provided?

Back pay and reinstatement will be the customary remedies where an employer terminates an employee because he/she would not proceed with the interview without a co-worker present. An employer also will be ordered to post a notice for all employees to see, informing them of their rights under the Act, including their Weingarten Rights, and the remedy obtained by the terminated employee. However, if there is good cause to discharge the employee separate and apart from the employee’s refusal to proceed with the interview, the Board will not award reinstatement or back pay. Thus, it is imperative that any disciplinary action be based upon the employee’s performance or conduct under investigation, as opposed to the employee’s request for co-worker representation.

Conclusion

Employers should closely monitor future Board decisions which clarify employee Weingarten Rights in the non-union workplace. In the meantime, all non-union employers should take steps to ensure that: (1) individuals responsible for reviewing disciplinary and termination decisions are aware of the recent change in law with respect to a non-union employee’s Weingarten Rights, and (2) no negative employment action is taken against any employee due to the exercise of these rights.