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NLRB Gives Non-Union Employees the Right to Representation During Investigatory Interviews

by Philip J. Young

Many non-union employers, and sometimes even their lawyers, have historically not worried about the rulings of the National Labor Board ("NLRB"). After all, it is commonly thought, doesn't the NLRB only deal with union shops? Not true. In fact, on July 10, 2000, the NLRB published a decision that will have a dramatic impact on how all employers conduct investigatory interviews. In Epilepsy Foundation of Northeast Ohio, the NLRB extended to non-union employees the right to representation by a co-worker at an investigatory interview which could result in disciplinary action. The NLRB's decision is an extension of the Supreme Court's 1975 Weingarten decision which provided such a right to union employees. The NLRB had previously never granted "Weingarten rights" to non-union employees.

Although the NLRB's decision provides little information concerning the application of Weingarten rights to representation in a non-union setting, the following principles derived from cases involving union-represented employees may provide some guidance:

1. Representation is only required if the employee requests it;
2. An employer need not tell an employee of the right to representation;
3. The interview in question must be "investigatory," i.e., one in which the employer is seeking to determine facts regarding a potential disciplinary situation;
4. The employee must "reasonably believe" that the interview may lead to disciplinary action;
5. The employee is entitled to meet with his/her representative before the interview;
6. The employee is entitled to be informed of the nature of the matter being investigated; and
7. Absent an agreement to the contrary, the employer is not required to pay the representative for time spent in session interview.

The NLRB's decision leaves many questions unanswered, largely because of the differences between union and non-union workplaces. Union workplaces have established procedures and personnel which guide the investigatory process. Non-union employers typically do not have the same level of procedures or designated personnel for such matters. For example, most union work places have shop stewards and business agents who typically are the representatives in such interviews. Non-union employers do not have such designated employees. Thus, what happens if the intended representative is not reasonably available? Further, since union shop stewards or business agents are potentially sophisticated about employee rights, may a non-union employee argue that he/she is thus entitled to designate an equally sophisticated non-employee, such as a lawyer, as the representative?

The contours of this decision still need to be defined. In the short term, however, it is critical that human resources staff be advised of this decision. Any specific questions concerning its application should be directed to an attorney.