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Non-union employees receive interview rights

Rochester Business Journal
August 25, 2000
A recent National Labor Relations Board decision means non-union employers now must allow employees being questioned about certain workplace incidents to have a co-worker present during that questioning.

Many non-union employers do not know the National Labor Relations Act even covers non-union employees. This new obligation comes directly from Section 7 of that act, according to a July 10 decision of the NLRB involving the Epilepsy Foundation of Northeast Ohio.

For background, in 1975 the U.S. Supreme Court ruled in NLRB v. J. Weingarten Inc. that a unionized company must grant an employee's request that a union representative attend investigatory interviews that the employee reasonably believes may result in disciplinary action. The Supreme Court derived this right from Section 7 of the act, which protects "concerted activities for ... mutual aid or protection."

In 1982, the NLRB held Weingarten also applied to non-union employers, but reversed itself three years later. In July 2000, the NLRB reverted to the 1982 rule that Weingarten does indeed apply to non-union employers.

The latest case involved two employees working on a three-year research project under a government grant transitioning teenagers with epilepsy from school to work. As this project came to an end, both employees sent their supervisor a memorandum stating his supervision was no longer needed. They followed up with a second memorandum 12 days later, elaborating on their recommendation and criticizing the supervisor for acting inappropriately on several occasions. Copies of both memoranda were sent to the Epilepsy Foundation's executive director.

The director wanted to discuss these memorandums with the employees and asked them, one at a time, to meet with her and the supervisor. The first employee said he would meet with the director without the supervisor. The director said that was not an option.

The employee then asked if his colleague, the co-author of the memorandums, could be present. The director responded that was not an option either. When the employee persisted, he was sent home and, the following day, fired for "gross insubordination." His termination letter specifically referred to his failure to attend the previous day's meeting and, while it also referenced other acts, did not describe them as further examples of gross insubordination.

These facts made out a classic Weingarten violation if that case applied to non-union employees, because it was to be an investigatory interview at which disciplinary action was likely. In fact, the second employee met with the director and the supervisor after he saw what happened to the first employee, and received a written warning for sending an insubordinate memorandum.

Employers need not provide Weingarten rights if the meeting simply informs the employee of a disciplinary decision that already has been made. Also, the employee's request that a representative be present always has been considered protected conduct under the National Labor Relations Act, even at non-union facilities. Employers cannot retaliate against an employee who makes such a request.

The Epilepsy Foundation decision did not change that rule; it only required the non-union employer to grant that request.

The foundation's termination letter should not have specifically referred to the employee's "gross insubordination" in refusing to attend the requested meeting without his colleague being present. The employer is not blocked from taking disciplinary action for other matters. However, it must remove the employee's refusal to meet from its decisional process and thinking. The employee's refusal to meet will not then be "a motivating factor" in the company's disciplinary decision, as the NLRB held it was in this case.

Non-union employers need a crash course on Weingarten rights. As noted, these rights apply only to investigatory interviews where the employee reasonably believes disciplinary action might result, not to meetings held to inform employees of disciplinary decisions already made.

The employee can request a co-worker be present at any point during the process. He or she does not waive the right by starting the meeting without the co-worker. A request by the employee that a supervisor be present as the co-worker is proper.

Once the request is made, the employee also is entitled to a pre-interview consultation with the co-worker, and also must be informed of the nature of the matter being investigated. This requirement can complicate certain employer investigations where the employee insists on knowing the topic being investigated in advance of the meeting. The pre-interview conference need not be on company time.

Disciplinary meetings for managers and supervisors are not covered.

The employer need not postpone the meeting if the co-worker requested is unavailable for reasons for which the employer is not responsible. The co-worker named must be available to attend the meeting "within a reasonable time."

Non-union employers can skip the interview entirely if the employee requests that a co-worker be present. They can offer the employee the choice of continuing the interview without the co-worker or dispensing with the interview, "thereby dispensing with any benefits the interview might have conferred on the employee."

This is an important point. The employer can complete its investigation without conducting the interview. The employee is then taking a gamble, as the employer can lawfully impose discipline without ever hearing the employee's side of the story.

Indeed, to the extent that employers proceed directly to discipline without interviewing the employee who requests Weingarten rights, this new rule will work to the disadvantage of non-union employees. Unlike unionized employees, they cannot go to arbitration to test whether the employer has sufficient evidence to support the discipline.

Workplace harassment investigations will become more complicated because of this new rule, since it will be more difficult to keep those investigations confidential. The co-worker may be a relevant witness whose corroboration is important. Also, the standard employer option to dispense with the interview entirely runs directly counter to the employer's obligation under Title VII-another federal statute-to conduct a prompt and thorough investigation of all workplace harassment complaints.

Non-union employers have several decisions to make. Should they include these new statutory rights in their employee handbook? Should they affirmatively tell employees, "this is not a reprimand or a disciplinary action" so Weingarten doesn't arise at every employee meeting? Should employers affirmatively ask employees at the start of an investigatory interview whether they want a co-worker present? Will employers create a roster of employee "advisers" so there won't be delays, as many companies have done under internal non-union grievance procedures?

Non-union employers must stay ahead of the issues and learn these new rules. Education is critical if simple but costly mistakes are to be avoided.

(Justin P. Doyle is a partner with Nixon Peabody LLP. His partner, John Canoni, assisted with this article.)

8/25/00--Rochester Business Journal

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