AN EMPLOYEE'S RIGHT TO REPRESENTATION
DURING AN INVESTIGATORY INTERVIEW
The question of whether the National Labor Relations Act requires a non-unionized employer to grant an employee's request to have a representative present during a meeting or investigatory interview from which disciplinary action might result has resulted in some interesting cases in the recent past. Employers around the nation had cause to worry after the D.C. Circuit Court of Appeals ruled in a landmark case in November, 2001 that the NLRA indeed gives employees such a right. In Epilepsy Foundation of N.E. Ohio v. National Labor Relations Board, 268 F.3d 1095 (D.C. Cir. 2001), the court held that the NLRB's decision in July, 2000 to extend the 1975 ruling of the U.S. Supreme Court in NLRB v. J. Weingarten (420 U.S. 251) to non-union workplaces was reasonable. The Weingarten holding was that a union employee has the right to request that a representative be present during an investigatory interview that might result in disciplinary action. In extending that holding to the non-union workplace, the NLRB observed that "... the right was grounded in the language of Section 7 of the Act, specifically the right to engage in 'concerted activities for the purpose of mutual aid or protection.' This rationale is equally applicable in circumstances where employees are not represented by a union, for in these circumstances the right to have a coworker present at an investigatory interview also greatly enhances the employees' opportunities to act in concert to address their concern 'that the employer does not initiate or continue a practice of imposing punishment unjustly.'" (page 3 of NLRB decision, Cases 8-CA-28169 and 8-CA-28264, July 10, 2000). The D.C. Circuit Court of Appeals affirmed that part of the Board's ruling, but reversed the part of the ruling that applied the rule retroactively to the Epilepsy Foundation, since the employer had acted in good faith reliance on the NLRB rule at the time of the incidents, which was that Weingarten rights extend only to union employees.
As the appeals court pointed out, neither the NLRB ruling nor the appeals court ruling go so far as to require certain things that might otherwise be an onerous burden on the disciplinary or investigation process:
The employer is not required to inform an employee of his or her Weingarten rights or tell an employee about the right to representation.
The ruling does not give the employee the right to delay a meeting if the representative of choice is unavailable at the time the employer wants to hold the meeting. If the employee asks for a specific representative who is unavailable at the time of the meeting, the employer can tell the employee to choose another representative.
The ruling does not discuss the right of the employee's representative to speak during the meeting or ask questions. Presumably, a reasonable amount of consultation between the employee and the representative would be allowed. However, if the representative is disruptive or otherwise interferes with the meeting, the employer would presumably have the right to ask the employee to select a different representative.
Finally, as the court of appeals correctly noted, the employer can forego a meeting altogether and simply act on the basis of other evidence in a matter. However, that alternative will not often be satisfactory, since the employer usually wants to know exactly what happened so that appropriate action can be taken against the appropriate party.
The employer should document its efforts to comply with the employee's right to request representation during such a meeting.
In 2002, the U.S. Supreme Court declined review of the appeals court's decision, meaning that it found no compelling reason to disagree with it. Fortunately, the NLRB reconsidered its Epilepsy Foundation holding in the case of IBM Corporation, 341 NLRB No. 148 (June 9, 2004), ruling that its prior holding in E. I. DuPont & Co., 289 NLRB 627 (1988), to the effect that the Weingarten rule does not apply in a non-union setting, was the proper interpretation of the NLRA. Thus, employers have received a bit of breathing room on this issue, even though the NLRB declined in 2007 to apply the IBM rule retroactively in cases arising before the IBM decision was issued (see Wal-Mart Stores, Inc., 351 N.L.R.B. 130 (2007)). However, given the new members of the NLRB in 2021, employers would be well-advised to consult an employment law attorney of their choice on this important legal issue to ensure that their disciplinary processes comply with various state and federal laws.
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