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The National Labor Relations Board has held 3 to 2 that all employees covered by the National Labor Relations Act, 29 USC §§150, et. seq., are entitled to have a co-worker present with them during an investigatory interview that the employee reasonably believes might result in disciplinary action. Epilepsy Foundation of Northeast Ohio, 331 NLRB No. 134 (2000). Previously, the NLRB had held that only employees represented by a union had the right to have a witness for such an interview. The result is to expand the "Weingarten" right (as it was known in labor circles) to the 85 percent of the workforce that is non-union.

The Facts

The employer provided services to persons suffering from epilepsy. Arnis Borgs had been one of two employees who sent a memo to his supervisors indicating that he felt that he deserved less direct supervision. Upon receipt of this memo, Borgs' supervisors became unhappy and so indicated to Borgs, which prompted another memo from Borgs. Upon receipt of the second memo, Borgs' supervisors asked for a face-to-face meeting with him.

Borgs felt intimidated by this request because during a prior meeting, Borgs had been disciplined. Borgs expressed his reservations to one of his supervisors, requesting that a co-worker be present with him during the meeting. His supervisor refused and demanded that Borgs meet with him and other management personnel that afternoon. Borgs refused and was sent home for the day. The following day, Borgs was terminated for insubordination because of his refusal to meet alone with his supervisors.

Precedent and the Board's Reasoning

In NLRB v. J. Weingarten, 420 U.S. 251 (1975), the U.S. Supreme Court held that an employer violated §8 (a)(1) of the National Labor Relations Act by denying an employee's request that a union representative be present at an investigatory interview that the employee reasonably believed might result in disciplinary action. This holding created the Weingarten right but was interpreted to apply only to employees represented by a union. (Between 1982 and 1985, the NLRB took the position that Weingarten rights applied to all employees, union and non-union, but in 1985, the NLRB ruled that only unionized employees had the right to have a representative attend investigative interviews.)

In the Epilepsy Foundation decision, the NLRB reversed itself and held that all employees can assert Weingarten rights, not just those represented by unions. The NLRB relied on §7 of the National Labor Relations Act, which protects employees' right "to engage in… concerted activities for the purpose of mutual aid or protection…" and emphasized that it applies to all employees, not just those represented by unions.

The NLRB majority rejected the argument that extending these rights to non-union workplaces worked to the detriment of employees by encouraging employers to forego investigatory interviews. According to the NLRB, although the employer has this prerogative, the argument is based solely on speculation and "assumes the worst in employer motives." The NLRB reasoned that the decision might not have a significant effect upon non-union workplaces because employees are not obligated to request the presence of a Weingarten representative and employers are not required to interview employees before imposing discipline.

Effects on the Non-Union Workplace

While application of the Weingarten rule to the non-union workplace raises many questions, 25 years of litigation under Weingarten provides substantial guidance as to how the rule will be applied.

First, the Weingarten right arises only when the employee requests representation. If the employee does not request that a co-worker be present, an employer does not violate the National Labor Relations Act by interviewing the employee alone.

Second, the employer is not required to interview the employee if the employee makes a Weingarten request. But, as discussed below, there are competing legal obligations that may make it prudent for an employer to interview employees when considering discipline. If the employee asserts his or her Weingarten right, the employer has three options:

Third, the Weingarten right does not operate if the purpose of a discussion is to inform an employee of a disciplinary decision that already has been made.

Fourth, while the Weingarten witness may object to questions, he may not engage in abusive conduct or disrupt the interview.

Fifth, the representative chosen by the employee must be able to attend the meeting within a reasonable period of time. If an employer insists on an immediate interview, the employee and his or her witness must have some opportunity to confer before the interview.

Finally, the right has been held to apply not only to simple interviews but also to polygraph testing, polygraph-related interviews and drug tests.

Implications and Applications of the Decision

Although an employer has the option of not interviewing an employee if the employee requests that a co-worker be present, federal and state court decisions and statutes that address employer investigations may counsel the employer against exercising that prerogative. For example, the decision of the California Supreme Court in Cotran v. Rollins Hudig Hall, 17 Cal.4th 93 (1999) arguably requires employers to conduct an adequate and reasonable investigation before terminating an employee for cause pursuant to an implied or express contract. Under the Cotran decision, an investigation without interviewing the employee accused of wrongdoing could be considered inadequate.

Also, under federal and state law, a complaint of unlawful discrimination or harassment may compel an investigation of the alleged wrongdoing. A failure to interview the accused could result in a finding that the investigation was inadequate.

In a related vein, employers with a policy promising employees who make complaints of sexual harassment a degree of confidentiality must evaluate the effects of having another employee become aware of allegations made by a complainant. Under NLRB precedent, it is arguable that such an employee cannot be asked to keep the discussions confidential. Non-union employers will have to adopt a more nuanced approach to investigations of alleged misconduct similar to those that their counterparts with unionized employees have adopted.

Finally, this decision may prove to be very important to those employers who are not unionized but who are involved in a union organizing campaign. If employees are called into an investigatory interview and are not granted their Weingarten right, this failure could result in the NLRB overturning an employer victory in an NLRB election.

This decision raises complicated issues, especially for employers who are not experienced in managing employees in a union environment. Employers should consult an experienced labor attorney if a non-union employee asks to assert his or her Weingarten right.

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For more information about the issues covered in this report, please contact Linda S. Husar in our Los Angeles office at 213-576-8017 or at lshusar@thelen.com or contact your Thelen attorney. For more information about Thelen's Construction and Government Contracts Department, click here.





©2000 Thelen Reid Brown Raysman & Steiner LLP