On July 10, 2000, a divided National Labor Relations Board
did an abrupt about-face and determined that employees who are not
union-represented nevertheless have a right under the National Labor
Relations Act to request the presence of a fellow employee at an
employer-conducted investigatory interview if the employee reasonably
believes that the interview may result in discipline. Epilepsy
Foundation of Northeast Ohio, 331 NLRB No. 92. A similar right
was accorded union-represented employees by the Supreme Court in
1975. NLRB v. Weingarten, 420 U.S. 251 (1975).
In Epilepsy Foundation, three of the Boards five members
(Truesdale, Fox and Liebman) held that an employees right
to a fellow employees presence at an investigatory interview
is provided by Section 7 of the NLRA, which guarantees employees
the right not only to engage in "union" activity, but
also to engage in "concerted activities for . . . other mutual
aid or protection." Once before, the Board flirted with the
extension of "Weingarten" representational rights
to non-union employees, Materials Research Corp., 262 NLRB
1010 (1982), but abandoned that effort. E.J. DuPont & Co.,
289 NLRB 627 (1988).
In Epilepsy Foundation, the Board majority argued that "the
right to the presence of a representative is grounded in the rationale
that the Act generally affords employees the opportunity to act
together to address the issue of an employers practice of
imposing unjust punishment on employees." Slip op. at p. 2.
The majority rejected arguments from dissenting Board members Hurtgen
and Brame and others that no compelling circumstances warranted
reversal of established precedent, that the balance would be upset
between employee assistance and unfettered employer investigations,
that the Board is placing an "unknown trip wire" on employers
who are legitimately pursuing investigations of employee conduct,
and that employers will be forced to "deal" with employee
witnesses as with union bargaining representatives.
The practical impact of the Boards extension of Weingarten
rights to non-union employees is certain to cause upset and confusion
for employers and employees. This is particularly so for employers
whose employees are not represented by unions and who therefore
are not familiar with the nuances of NLRB doctrines. For instance,
even unionized employers are not required to permit representation
of employees during purely "disciplinary" interviews in
which discipline is simply meted out, as opposed to more preliminary
fact-gathering "investigatory" interviews. Under Weingarten,
too, an employee must request the presence of a union representative
and an employer may forego the investigatory interview altogether
rather than accede to the employees request. There will be
additional complications and uncertainties, too, concerning the
role of the representative during the interview, the employees
choice of a representative and whether the right extends to "outsiders"
such as attorneys or union organizers, the representatives
immediate availability, and the employees right to confer
with the representative before the investigatory interview begins.
The Boards decision, too, will afford new organizing opportunities
as unions coach employees and as employees become more accustomed
to expanded representational rights. And surely, the NLRB will experience
a surge in unfair labor practice charges against employers while
word of the Boards new holding spreads and while the Boards
decision and its retroactive application are tested in federal circuit
courts of appeals and ultimately in the Supreme Court.
Employers whose employees are not represented by unions and who,
thus, may be unfamiliar with existing Weingarten representational
rights must familiarize themselves with the requirements and practical
effects of the Boards new decision. Failure to do so will
result not only in unnecessary and wasteful litigation, but also
backpay liability and the undoing of discipline imposed after investigatory
interviews at which employee requests for the presence of a representative
have been denied.