A decision by the D.C. Circuit Court of Appeals reminds employers that the National Labor Relations Act (NLRA) gives nonunion employees many of the same rights as union employees. In Epilepsy Foundation of N.E. Ohio v. NLRB, 268 F.3d 1095 (D.C. Cir. 11/2/01), the court upheld a National Labor Relations Board (NLRB) decision that allows nonunion employees, under the NLRA, to request and have a coworker present during an investigatory interview that might be expected to lead to discipline. The court determined that the NLRB’s decision was reasonable, even though the Board overturned the position it has followed for the last 15 years that only unionized employees have a right to representation in these situations. Since the NLRA applies to all employers, regardless of size, this decision strongly enhances the NLRB’s enforcement powers on the issue and therefore should be carefully considered by employers.

Background to the Right to Representation                                         [Download Free Policies]

In union workplaces, a represented employee has the right to have a union representative present, upon request, during an investigatory interview if the employee reasonably believes that the interview might result in discipline. This right is known as the Weingarten right because it stems from the Supreme Court’s 1975 decision in NLRB v. Weingarten Inc., 420 U.S. 251 (1975). In Weingarten, the Court determined that the right to union representation during these interviews falls within the NLRA’s guarantee that employees may engage in “concerted activities for the purpose of mutual aid or protection.”
The NLRB, the federal agency that enforces the NLRA, expanded the Weingarten decision in 1982 to include the right of nonunion employees to request the presence of a coworker at an investigatory interview. However, the NLRB subsequently overruled this opinion in 1985 by stating that giving nonunion employees Weingarten rights infringes on an employer’s right to deal with employees on an individual basis when no union is present. The NLRB reaffirmed this position in 1988, although it left open the possibility that the NLRA “might be amenable to other interpretations.”

The D.C. Circuit Decision

In this more recent NLRB decision (found at 331 N.L.R.B. No. 92 (2000)), the Board asserted that its previous decisions misinterpreted Weingarten and “erroneously limit its applicability to the unionized workplace.” According to the NLRB, the Weingarten right to representation during an investigatory interview is grounded in Section 7 of the NLRA, which grants all employees, not just union employees, the right to engage in “concerted activities for the purpose of mutual aid or protection.” The right to have a coworker present at an investigatory interview that may lead to discipline “greatly enhances” the employees’ opportunities to act together to address their concern that the employer does not “initiate or continue a practice of imposing punishment unjustly.”
The D.C. Circuit agreed with the NLRB’s presumption that the Weingarten decision allows for the coverage of nonunion employees. The court pointed out that while the NLRB’s conclusion may be “debatable” since it “changed its mind” several times in addressing this issue, its rationale was “both clear and reasonable” and therefore should be followed by the court. Accordingly, it upheld the decision allowing nonunion employee representation.

Be Prepared for Your Next Investigation

So what does this decision mean for you? Although there is a chance that the employer in this case may appeal the court’s decision, either to a full panel of the D.C. Circuit (the case was heard by a panel of three judges) or to the Supreme Court, an appeal appears unlikely. As a practical matter, the full panel of a circuit court rarely rehears decisions, and the Supreme Court will review a case only when it involves an important legal principle or if there are conflicting interpretations among the circuit courts. Of course, there always is the possibility that the NLRB will change course again and determine that the Weingarten rule does not apply to nonunion employees. However, given the fact that two of the five seats on the Board are vacant and that Democrats enjoy a two to one majority in the remaining three seats, this option is also a long shot, at least for the immediate future. Therefore, you should be prepared to deal with nonunion employee requests for representation in investigatory interviews.

Three Steps to Compliance

To help plan an appropriate response, you need to anticipate when an employee may invoke the right to representation. The most likely situations include any investigation involving employee misconduct such as sexual harassment complaints, workplace violence incidents, work rule violations, and theft. A key point to remember is that, to be covered, the employee must believe the interview may lead to disciplinary action. In contrast, meetings where the employee is only told the outcome of an investigation, or is actually disciplined, are not covered.

Note, too, that the decision does not require you to notify employees of their right to representation. However, recent NLRB decisions suggest that you should inform the employee of the fact that you plan an investigatory interview that could result in discipline. In addition, the right to representation is limited to a coworker, and does not include attorneys or other nonemployees; and the coworker may not engage in disruptive behavior. The coworker’s proper role is unclear since the employer is not required to compromise with the representative.
Another interesting point to keep in mind is that this right does not apply to supervisory employees. The NLRA gives only “employees” the right to engage in certain protected concerted activity and the right to representation, but specifically excludes supervisors from this definition.

To make sure you are ready for a representation request, you should take the following three steps:

1. Review your disciplinary policy. You may need to make revisions if it prohibits representation at investigatory interviews or specifically allows representation only for union employees.

2. Have a plan to respond to requests. Based on the NLRB’s guidelines, you have three options: you can grant the request, you can forego the interview, or you can give the employee the choice to continue the interview without representation or not be interviewed at all. Note that this last option may leave you open to charges of unfair labor practices if you appear to pressure the employee into continuing the interview without representation, or if you take adverse action because the employee does not participate.

3. Train supervisory employees who conduct investigations. Make sure they understand the right to representation, how to respond to requests, and that they may not discipline any employee for requesting representation.

Implications of Right Still Evolving

Since the NLRB’s position was announced, most nonunion employees and employers are not aware of their rights and obligations. In addition, attorneys and HR practitioners are still debating how nonunion employers should proceed. This court decision, however, increases the pressure on employers to plan for compliance. As more experts weigh in on the implications of the decision, advice on how to implement it will continue to evolve. Accordingly, you and your legal counsel need to stay on top of the issue.