Issue of the Month

November 2001, The Primrose Path: Weingarten Rights Extended to Non-Union Workers

It has been said that the workplace is a "garden of litigation" and yet another thorny rose has been planted for the employer's blooming flower plot. Management's right to deal freely with employees in a non-union setting is now further restricted by the case, Epilepsy Foundation of Northeast Ohio which extended so-called "Weingarten rights" to employees not part of an organized bargaining unit.

Origin

The right to have a representative present during an investigative interview with an employer - Weingarten rights - was first recognized in the mid-seventies by the Supreme Court's decision in NLRB v. Weingarten. The Supreme Court upheld the National Labor Relations Board's (NLRB) decision that, under Sections 7 and 8(a)(1) of the National Labor Relations Act, it is an unfair labor practice for an employer to deny "an employee's request that [a] union representative be present at an investigatory interview which the employee reasonably believed might result in disciplinary action." The right to the presence of a representative was an "instance of concerted activities for the purpose of . . . mutual aid or protection," found in the broad language of Section 7 of the Act. It is the application of Section 7 of the Act in Weingarten which has created confusion because many judicial decisions have recognized and enforced Section 7 rights in non-organized workplaces.

Evolution

The language of Section 7 of the National Labor Relations Act (NLRA) has been interpreted to protect employee rights - whether or not their workplaces are organized, to "engage in . . . concerted activities for the purpose of . . . mutual aid or protection." Courts have noted this right is important because it encourages employees to look out for and provide each other with mutual support in the face of possible discipline by their employers. Because Weingarten rights arise from this portion of Section 7 which has been applied to non-union worksettings, the question has naturally arisen whether these rights should be extended to all workplaces, even those without union representation. Epilepsy Foundation of Ohio answered that question in the affirmative.

Current Status

The current law, under Epilepsy Foundation, allows an employee in a non-organized workplace to have a co-worker present when called by the employer for an investigatory interview that the employee reasonably believes might result in disciplinary action. This right does have certain restrictions. Because it is an extension of Weingarten rights, it is also subject to those same following limitations:

1. The employee must invoke the right - the employer has no obligation to inform the employee of his/her right to make such a request.
   
2. The right exists only when the employee reasonably believes the interview may result in discipline.
   
3. The employer has no obligation to bargain with the employee or the representative (accompanying co-worker).
   
4. The employer may, after the employee has invoked his/her right, refuse to proceed with the interview and may discipline the employee without hearing his/her side of the story.
   

Problems

There have been a number of problems arising out of the Court's decision in Epilepsy Foundation that remain unsolved. Weingarten rights arise only in the situation of an investigatory interview conducted to gather information about a workplace incident. Meetings in which discipline is actually imposed are not applicable. The most obvious unintended consequence of Epilepsy Foundation is that some employers will forgo conducting investigatory interviews of employees who have demanded the Weingarten rights, leaving the employee without the opportunity to tell his/her side of the story. Other questions also remain unanswered:

1. Is the representative entitled to compensation for time spent in the interview, preparation time, after work hours meetings?
   
2. How much time must an employer allow an employee to find a representative? What if the requested or only possible representative is unavailable?
   
3. What constitutes an interview for investigative purposes?
   

These uncertainties will undoubtedly lead to further confusion. Employers may apply representational rights selectively and face discrimination charges. Representatives may misunderstand their role, suffer discipline, and file charges. Employers and employees will not understand basic issues such as, "who is an appropriate representative?" and "in what situations may the rights attach?"

Conclusion

Employers should develop comprehensive policies to address representation requests in a consistent manner. Many employers may wish to make the disciplinary decisions based on the facts they have prior to the interview. Providing the employee the opportunity to submit a written statement or response to the allegations and determining any appropriate disciplinary course from the information given may also be an employer option.

Clearly, this decision may result in an increase in litigation. Issues of confidentiality, fairness and consistency must be taken into consideration when handling requests for representation. Without a doubt, it creates questions and confusions on the part of both employer and employee.

As the dissent in Epilepsy Foundation said - "the workplace has become a garden of litigation and the Board is adding another cause of action to flower therein, but hiding in the weeds."

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