Whither Weingarten?

A Brief History

The Board first extended Weingarten into the non-union setting in 1982, reasoning that NLRA Section 7 right of employees to engage in concerted activity for mutual aid or protection did not depend upon the representational status of a particular group of employees. Materials Research Corp., 262 NLRB 1010, 1010 (1982). It reversed itself in 1985, reasoning that “Section 7's protections may vary depending on whether employees are represented or unrepresented.” Sears, Roebuck & Co., 274 NLRB 230, 231 (1985).

The Board changed positions again in 2000, reasoning that the rationale underlying Section 7 rights was “equally applicable in circumstances where employees are not represented by a union.” Epilepsy Foundation of Northeast Ohio, 331 NLRB 676, 676 (2000). Its most recent pronouncement came in 2004, when a new Board majority appointed by then-President Bush ruled that non-union workers do not enjoy Weingarten rights, rejecting the idea that non-union co-workers could represent the interests of the entire workforce. I.B.M. Corp., 341 NLRB 1288, 1289 (2004). Now, many NLRB watchers, including NLRB regional director Daniel Hubbel, predict another policy shift in favor of expansion of Weingarten rights. Christopher Brown, Weingarten Rights for Nonunion Workers Could Re-Emerge, Regional Director Predicts, Daily Lab. Rep. (July 13, 2011), http://news.bna.com/dlln/display/batch_print_display.adp?searchid=14895635.

Weingarten rights have their origin in Section 7 of the National Labor Relations Act, which establishes the right of employees to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” National Labor Relations Act, 29 U.S.C. ' 157. Section 8 of the NLRA outlines a series of unfair labor practices, giving teeth to employees' Section 7 rights. National Labor Relations Act, 29 U.S.C. ' 158(a)(1). Employees may only assert Weingarten rights in the context of an “investigatory interview.” This occurs when a supervisor “examines” or questions a bargaining unit employee to obtain information, and the employee has a “reasonable belief” that discipline or other adverse consequences may result from what the employee says. Weingarten at 251. See also Gene's Bus Co., 357 NLRB No. 85, *6 (2011) (“An employee has the right to request that a union representative be present at an investigatory interview that the employee reasonably believes might result in disciplinary action”). In such a situation, the employee may assert Weingarten rights by making a clear request, either before or during the interview, for the presence of a union representative. See Consolidated Edison Co., 323 NLRB 910, 916 (1997) (“Weingarten rights arise only when the employee requests representation ' However, the Board has made clear in a series of cases that such requests, to trigger Weingarten rights are liberal, and need only be sufficient to put the Employer on notice of the employee's desire for union representation ' [and] the employee's request for union representation need not be repeated at the interview it if was made to the person conducting the interview prior to the interview.”). In addition to oral questioning, a demand by management that an employee give a written statement may also constitute an examination that permits an employee to invoke Weingarten rights. See, e.g., Staten Island University Hospital, 2001 NLRB LEXIS 519 (Jul. 26, 2001).

However, not all conversations between management and employees are “investigatory interviews.” A meeting held only for the purpose of informing an employee of a disciplinary decision will not trigger Weingarten rights. See LIR-USA Mfg. Co., 306 NLRB 298, 305 (1992); Baton Rouge Water Works Co., 246 NLRB 995, 997 (1979). Supervisors may give instructions, training or needed corrections to work techniques without triggering Weingarten rights. Weingarten 420 U.S. at 257-58. The touchstone of whether questioning by management is simply a conversation versus an investigatory interview is whether the employee has a reasonable fear that the meeting could result in the issuance of discipline. See Amoco Oil Co., 278 NLRB 1, 8 (1986), Roadway Express, Inc., 246 NLRB 1127, 1127 (1979). See also Hilton Sacramento Arden West Hotel, 2011 NLRB LEXIS 228, *34 (NLRB May 12, 2011).

While the NLRA does not require an employer to advise employees about their Weingarten rights, if an employee requests union representation the employer has three options: 1) grant the request and delay questioning until the union representative arrives; 2) deny the request, end the interview, and impose discipline based on information that the employer otherwise has; or 3) give the employee the choice of either having the interview without representation or ending the interview. See Weingarten, 420 U.S. at 258-59. If the employer denies a request for union representation and continues the meeting without the employee's consent, it commits an unfair labor practice and the employee is entitled to refuse to answer further questions. The employer may not discipline the employee for refusing to answer questions. Moreover, if the employer ends the interview and chooses to discipline the employee based upon information that it otherwise has, it is the employer's burden to show that the discipline imposed was not more severe than it would have been but for the employee's request for representation. Id.

Representative Rights

If the employer grants an employee's request for union representation, it should be aware that the NLRB has given representatives explicit rights. Weingarten at 259. The representative's role is to advise and assist the employee in presenting the facts. Thus, the employer must inform the representative of the subject matter of the interview and the type of misconduct being investigated. Pacific Telephone and Telegraph Co., 262 NLRB 1048 (1982), enforced in part and enforcement denied in part, 711 F.2d 134 (9th Cir. 1983). Moreover, the employer must delay the investigatory interview ' anywhere from merely minutes to a day or longer, depending on the circumstances ' to allow the employee the opportunity to meet privately with his or her representative in advance of the interview. U.S. Postal Service, 288 NLRB 864, 866 (1988).

Employers are generally not required to unduly delay an interview because the employee insists on a particular representative. During an interview the employer is free to insist that it is only interested in hearing the employee's own account of the matter under investigation; however, the representative must be allowed to speak, to object to a confusing question and request that the question be clarified, and to advise the employee not to answer questions that are abusive, misleading, badgering, or harassing. See Southwestern Bell Telephone Co., 251 NLRB 612 (1980) (union representative must be allowed to speak); U.S. Postal Service, 288 NLRB at 868) (representative may object to a confusing question and request that the question be clarified); New Jersey Bell Telephone Co., 308 NLRB 277 (1992) (representative may advise employee not to answer questions that are abusive or misleading). An employer has only a limited right to regulate the role of the union representative.

Right of Non-Union Worker to Request the Presence of a Co-worker

Even in the absence of an official NLRB policy shift, there is NLRB case law that counsels caution by non-union employers when denying an employee request for the presence of a co-worker at an investigatory interview. There is no doubt that the act of making such a request is, itself, a protected activity and, while it currently need not be granted to a non-union employee, any disciplinary action or termination decision must be predicated solely on grounds other than the request for representation.

In Wal-Mart Stores, Inc., 351 NLRB 130 (2007), Wal-Mart, a non-union employer, denied an employee's request to bring a co-worker to an investigatory interview. After convincing the employee to attend the interview without a co-worker, Wal-Mart ordered him to prepare a written statement while it continued its investigation. The following day, Wal-Mart terminated the employee after he refused to prepare the written statement and refused to attend another interview without a witness. The NLRB held that a non-union employee remains entitled to request the presence of a co-worker at an interview that he reasonably believes could lead to discipline. Id. at 133. Because the non-union employee is not entitled to insist upon the presence of a co-worker, the employer need not assent to the request and may continue the interview without the presence of a co-worker witness. In this case, the NLRB found that the employee's protected conduct of requesting a witness at the interview, was “inextricably intertwined” with other reasons given by Wal-Mart for his discharge. Wal-Mart at 133. Thus, Wal-Mart could not meet its burden of showing that the employee would have been terminated regardless of his protected request for representation.

Remedies

If an employer does violate an employee's Weingarten rights, there are two possible remedies, depending on whether the employee confesses to wrongdoing or not. If the employee is denied Weingarten rights, confesses during the interview to serious wronging and is subsequently terminated, then the usual remedy is for the employer to post an NLRB-prepared notice that outlines the Weingarten rules, states that the employer has violated them, and promises to comply with the rules in the future. See, e.g., Taracorp, Inc., 273 NLRB 221 (1984). On the other hand, if the employee does not admit wrongdoing in the course of the interview, but is discharged for requesting representation or for refusing to answer questions without representation, the NLRB may order reinstatement of the employee with back pay, including interest. Safeway Stores, 303 NLRB 989 (1991). A make-whole remedy is also imposed if an employee is demoted, transferred, or loses privileges because of a request for union representation. Id.

Conclusion and Recommendations

The relative immunity from Weingarten rights that non-union employers currently enjoy in investigating and responding to employee misconduct may soon be the subject of an NLRB policy shift. Accordingly, employers would be well-advised to brush up on Weingarten rights, and perhaps even to grant an employee request for representation at an investigatory interview, to avoid becoming the subject of the next test case.

John D. Shyer, a member of this newsletter's Board of Editors, is a labor and employment law partner in the New York office of Latham & Watkins LLP and co-chair of the firm's Employment Law practice group. Linda M. Inscoe is a labor and employment law partner in the firm's San Francisco office.

The National Labor Relations Board (NLRB), charged with interpretation and enforcement of the National Labor Relations Act (NLRA), has often been accused over the years of politicized decision- and rule-making. The NLRB is once again poised to make significant changes in the labor law landscape. The current NLRB is beginning to issue rules and decisions more favorable to organized labor, and its field offices (called “regions,” which are headed by “regional directors”) are issuing complaints expanding the rights of non-union workers. Recent examples include a series of challenges by the NLRB to employer disciplinary action against both unionized and non-unionized employees over social media posts critical of employers and supervisors, and a newly approved rule requiring that employers post in their workplaces a notice of employee rights under the NLRA (something that has never been required in the more than 75 years since the NLRA was enacted). Another policy area in which NLRB watchers believe the Board is poised to make a change is the scope of Weingarten rights. As a result, non-union employers should brush up on Weingarten rights and an employer's obligations when such rights are invoked.

What Are Weingarten Rights?

“Weingarten rights” refers to the rights of a worker to have union or co-worker representation during an “investigatory interview” that the worker reasonably believes may lead to disciplinary action. These rights were initially established in 1975, in the context of a dispute between an employer and a union employee who requested that her union representative be allowed to attend a meeting that she believed might lead to disciplinary action. NLRB v. Weingarten, Inc. , 420 U.S. 251 (1975). Since that time, the NLRB has decided that the right of representation includes the right to have a co-worker, rather than a union official, present at an investigative interview under certain circumstances. See Epilepsy Foundation of Northeast Ohio, 331 NLRB 676, 676 (2000) (extending the Weingarten right to have a co-worker present during investigatory interviews to the non-unionized setting); but see IBM Corp., 341 NLRB 1288, 1289 (2004) (expressly overruling Epilepsy Foundation, but preserving right of unionized employees to have a co-worker present). The NLRB has also oscillated, depending upon the political makeup of the Board, between expanding Weingarten rights to include non-union employees, and limiting the right of representation only to union workers.

A Brief History

The Board first extended Weingarten into the non-union setting in 1982, reasoning that NLRA Section 7 right of employees to engage in concerted activity for mutual aid or protection did not depend upon the representational status of a particular group of employees. Materials Research Corp., 262 NLRB 1010, 1010 (1982). It reversed itself in 1985, reasoning that “Section 7's protections may vary depending on whether employees are represented or unrepresented.” Sears, Roebuck & Co., 274 NLRB 230, 231 (1985).

The Board changed positions again in 2000, reasoning that the rationale underlying Section 7 rights was “equally applicable in circumstances where employees are not represented by a union.” Epilepsy Foundation of Northeast Ohio, 331 NLRB 676, 676 (2000). Its most recent pronouncement came in 2004, when a new Board majority appointed by then-President Bush ruled that non-union workers do not enjoy Weingarten rights, rejecting the idea that non-union co-workers could represent the interests of the entire workforce. I.B.M. Corp., 341 NLRB 1288, 1289 (2004). Now, many NLRB watchers, including NLRB regional director Daniel Hubbel, predict another policy shift in favor of expansion of Weingarten rights. Christopher Brown, Weingarten Rights for Nonunion Workers Could Re-Emerge, Regional Director Predicts, Daily Lab. Rep. (July 13, 2011), http://news.bna.com/dlln/display/batch_print_display.adp?searchid=14895635.

Weingarten rights have their origin in Section 7 of the National Labor Relations Act, which establishes the right of employees to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” National Labor Relations Act, 29 U.S.C. ' 157. Section 8 of the NLRA outlines a series of unfair labor practices, giving teeth to employees' Section 7 rights. National Labor Relations Act, 29 U.S.C. ' 158(a)(1). Employees may only assert Weingarten rights in the context of an “investigatory interview.” This occurs when a supervisor “examines” or questions a bargaining unit employee to obtain information, and the employee has a “reasonable belief” that discipline or other adverse consequences may result from what the employee says. Weingarten at 251. See also Gene's Bus Co., 357 NLRB No. 85, *6 (2011) (“An employee has the right to request that a union representative be present at an investigatory interview that the employee reasonably believes might result in disciplinary action”). In such a situation, the employee may assert Weingarten rights by making a clear request, either before or during the interview, for the presence of a union representative. See Consolidated Edison Co., 323 NLRB 910, 916 (1997) (“Weingarten rights arise only when the employee requests representation ' However, the Board has made clear in a series of cases that such requests, to trigger Weingarten rights are liberal, and need only be sufficient to put the Employer on notice of the employee's desire for union representation ' [and] the employee's request for union representation need not be repeated at the interview it if was made to the person conducting the interview prior to the interview.”). In addition to oral questioning, a demand by management that an employee give a written statement may also constitute an examination that permits an employee to invoke Weingarten rights. See, e.g., Staten Island University Hospital, 2001 NLRB LEXIS 519 (Jul. 26, 2001).

However, not all conversations between management and employees are “investigatory interviews.” A meeting held only for the purpose of informing an employee of a disciplinary decision will not trigger Weingarten rights. See LIR-USA Mfg. Co., 306 NLRB 298, 305 (1992); Baton Rouge Water Works Co., 246 NLRB 995, 997 (1979). Supervisors may give instructions, training or needed corrections to work techniques without triggering Weingarten rights. Weingarten 420 U.S. at 257-58. The touchstone of whether questioning by management is simply a conversation versus an investigatory interview is whether the employee has a reasonable fear that the meeting could result in the issuance of discipline. See Amoco Oil Co., 278 NLRB 1, 8 (1986), Roadway Express, Inc., 246 NLRB 1127, 1127 (1979). See also Hilton Sacramento Arden West Hotel, 2011 NLRB LEXIS 228, *34 (NLRB May 12, 2011).

While the NLRA does not require an employer to advise employees about their Weingarten rights, if an employee requests union representation the employer has three options: 1) grant the request and delay questioning until the union representative arrives; 2) deny the request, end the interview, and impose discipline based on information that the employer otherwise has; or 3) give the employee the choice of either having the interview without representation or ending the interview. See Weingarten, 420 U.S. at 258-59. If the employer denies a request for union representation and continues the meeting without the employee's consent, it commits an unfair labor practice and the employee is entitled to refuse to answer further questions. The employer may not discipline the employee for refusing to answer questions. Moreover, if the employer ends the interview and chooses to discipline the employee based upon information that it otherwise has, it is the employer's burden to show that the discipline imposed was not more severe than it would have been but for the employee's request for representation. Id.

Representative Rights

If the employer grants an employee's request for union representation, it should be aware that the NLRB has given representatives explicit rights. Weingarten at 259. The representative's role is to advise and assist the employee in presenting the facts. Thus, the employer must inform the representative of the subject matter of the interview and the type of misconduct being investigated. Pacific Telephone and Telegraph Co., 262 NLRB 1048 (1982), enforced in part and enforcement denied in part, 711 F.2d 134 (9th Cir. 1983). Moreover, the employer must delay the investigatory interview ' anywhere from merely minutes to a day or longer, depending on the circumstances ' to allow the employee the opportunity to meet privately with his or her representative in advance of the interview. U.S. Postal Service, 288 NLRB 864, 866 (1988).

Employers are generally not required to unduly delay an interview because the employee insists on a particular representative. During an interview the employer is free to insist that it is only interested in hearing the employee's own account of the matter under investigation; however, the representative must be allowed to speak, to object to a confusing question and request that the question be clarified, and to advise the employee not to answer questions that are abusive, misleading, badgering, or harassing. See Southwestern Bell Telephone Co., 251 NLRB 612 (1980) (union representative must be allowed to speak); U.S. Postal Service, 288 NLRB at 868) (representative may object to a confusing question and request that the question be clarified); New Jersey Bell Telephone Co., 308 NLRB 277 (1992) (representative may advise employee not to answer questions that are abusive or misleading). An employer has only a limited right to regulate the role of the union representative.

Right of Non-Union Worker to Request the Presence of a Co-worker

Even in the absence of an official NLRB policy shift, there is NLRB case law that counsels caution by non-union employers when denying an employee request for the presence of a co-worker at an investigatory interview. There is no doubt that the act of making such a request is, itself, a protected activity and, while it currently need not be granted to a non-union employee, any disciplinary action or termination decision must be predicated solely on grounds other than the request for representation.

In Wal-Mart Stores, Inc., 351 NLRB 130 (2007), Wal-Mart, a non-union employer, denied an employee's request to bring a co-worker to an investigatory interview. After convincing the employee to attend the interview without a co-worker, Wal-Mart ordered him to prepare a written statement while it continued its investigation. The following day, Wal-Mart terminated the employee after he refused to prepare the written statement and refused to attend another interview without a witness. The NLRB held that a non-union employee remains entitled to request the presence of a co-worker at an interview that he reasonably believes could lead to discipline. Id. at 133. Because the non-union employee is not entitled to insist upon the presence of a co-worker, the employer need not assent to the request and may continue the interview without the presence of a co-worker witness. In this case, the NLRB found that the employee's protected conduct of requesting a witness at the interview, was “inextricably intertwined” with other reasons given by Wal-Mart for his discharge. Wal-Mart at 133. Thus, Wal-Mart could not meet its burden of showing that the employee would have been terminated regardless of his protected request for representation.

Remedies

If an employer does violate an employee's Weingarten rights, there are two possible remedies, depending on whether the employee confesses to wrongdoing or not. If the employee is denied Weingarten rights, confesses during the interview to serious wronging and is subsequently terminated, then the usual remedy is for the employer to post an NLRB-prepared notice that outlines the Weingarten rules, states that the employer has violated them, and promises to comply with the rules in the future. See, e.g., Taracorp, Inc., 273 NLRB 221 (1984). On the other hand, if the employee does not admit wrongdoing in the course of the interview, but is discharged for requesting representation or for refusing to answer questions without representation, the NLRB may order reinstatement of the employee with back pay, including interest. Safeway Stores, 303 NLRB 989 (1991). A make-whole remedy is also imposed if an employee is demoted, transferred, or loses privileges because of a request for union representation. Id.

Conclusion and Recommendations

The relative immunity from Weingarten rights that non-union employers currently enjoy in investigating and responding to employee misconduct may soon be the subject of an NLRB policy shift. Accordingly, employers would be well-advised to brush up on Weingarten rights, and perhaps even to grant an employee request for representation at an investigatory interview, to avoid becoming the subject of the next test case.

John D. Shyer, a member of this newsletter's Board of Editors, is a labor and employment law partner in the New York office of Latham & Watkins LLP and co-chair of the firm's Employment Law practice group. Linda M. Inscoe is a labor and employment law partner in the firm's San Francisco office.