Assume for the moment that you are the employer of a problematic worker. You receive a complaint that the employee has engaged in sexual harassment in violation of company policy. Being a diligent employer, you want to investigate the complaint and resolve the situation. You suspect that your investigation may result in discipline.
The employee refuses to meet with you without a co-worker witness. Do you let him have his witness? The foregoing question is one employment attorneys consistently receive, and many employees have a solid misunderstanding of their rights to representation at investigatory and disciplinary meetings with their employers.
Although the answer in the past has been somewhat muddled, as of 2004 the legal right to any representation at an investigatory interview belongs only to those employees who are represented by labor unions. And unless employer policy provides otherwise, both union and non-union employees alike have no right to "co-worker" witnesses at investigatory meetings, unless those co-workers are union representatives.1 Even then, the right applies only to employees who specifically ask that a union representative be present; employers have no duty to inform employees of the right.2
The right derives from NLRB v. Weingarten.3 There, the U.S. Supreme Court reversed the Fifth Circuit and held that bargaining-unit members have the right, upon their specific request, to union representation at employer investigatory interviews. The Court limited the right to those situations where the employee reasonably believes the investigation will result in disciplinary action, e.g., sexual harassment investigations. Moreover, employees' rights will be limited where the request for representation interferes with legitimate employer prerogatives.4
At the same time, an employer's discipline or termination of an employee for refusal to cooperate in an investigatory interview is a violation of Section 8(a)(1) of the National Labor Relations Act (NLRA), which protects the rights of employees (union or non-union) to "organize, to form, join, or assist a labor organization, to bargain collectively . . . or to engage in other concerted activities for mutual aid or protection."5
Since Weingarten, courts and the National Labor Relations Board (NLRB) have further defined where the rights to representation exist. For example, employees have no right to representation at a meeting where the sole purpose is to inform the employee of previously made disciplinary decisions.6 Moreover, performance reviews or counseling sessions that objectively would not lead an employee to believe discipline was imminent do not require Weingarten representation.7
The NLRB's interpretation of Weingarten has been what many employers would deem torturous. In 1982, the NLRB extended Weingarten's application to non-union employees based on the idea that the NLRA protects the rights of non-union employees to engage in concert for "mutual aid or protection."8 Three years later, the NLRB reversed itself and determined that Weingarten did not apply where an employee lacks a recognized union.9 Three years after that, the NLRB retracted its Sears position.10 But in 2000, the Board reversed itself yet again and ruled that the NLRA grants non-union employees definitive Weingarten rights.11 Confused? You should be.
Clarification came most recently in 2004 when the NLRB determined that its previous applications of Weingarten to non-union employees were perfectly permissible interpretations of law, but that the "contemporary" workplace, including employers' ever-increasing requirements to conduct workplace investigations, increased incidents of corporate abuse and the events of September 11, 2001, compelled reversal of Epilepsy Foundation.12
Although IBM Corp. clarified the rights of workers to representation at investigatory interviews, it left open the possibility that the NLRB could again change its position by reasoning that the NLRB's previous interpretations of Weingarten were permissible. Accordingly, an ideological shift in the NLRB might once again give non-union employees a right to representation at investigatory interviews. Until then, however, unless employees work in the public sector,13 where constitutional rights of due process may apply, non-union employees have no rights of representation or witness presence at investigatory or disciplinary meetings while union employees continue to have Weingarten rights.
Nick Beermann is an associate at Jackson Lewis LLP where he practices employment and labor law. Beermann can be contacted at 206-405-0404.
1 See Williams Pipeline Co., 315 NLRB 1 (1994) (substitution of employee witness where union steward was unavailable at time of interview did not satisfy employee's right to be represented by exclusive employee bargaining representative) (citing cases).
2 See NLRB v. New Jersey Bell Tel. Co., 936 F.2d 144 (3d Cir. 1991).
3 420 U.S. 251 (1975).
4 Id. at 257Ð58.
5 See 29 U.S.C. ¤ 158.
6 Baton Rouge Water Works, 245 NLRB 995 (1979).
7 See Weingarten, 420 U.S. at 257Ð58; see also General Elec. Co., 240 NLRB 47 (1979).
8 Material Research Corp., 262 NLRB 1010 (1982).
9 Sears, Roebuck & Co., 274 NLRB 230 (1985).
10 E.I. DuPont de Nemours & Co. 289 NLRB 627 (1988).
11 Epilepsy Foundation of Northeast Ohio, 331 NLRB 92 (2000), aff'd, 268 F.3d 1085 (D.C. Cir. 2001).
12 IBM Corp., 341 NLRB 148, 150 (2004).
13 It should be noted that Washington's Public Employment Relations Commission has never appeared to apply Weingarten rights to non-union employees.
