'Round Up The Usual Suspects' And Violate The NLRA? The Implications Of Extending Weingarten Rights To Nonunionized Workplaces

Facing a situation in which one or more employees are suspected of misconduct, the natural employer action is to bring in the suspects for questioning. Human Resources departments and/or management interview each employee in an attempt to determine the facts in preparation for appropriate discipline, if warranted in the judgment of the employer.

In a unionized workforce, however, an employer generally may not proceed with an investigatory interview if the employee under investigation demands representation by a union official. This so-called Weingarten right (named for the case in which it was addressed by the Supreme Court)1 does not currently apply to a nonunionized workforce. That may change.

The National Labor Relations Board (Board) interprets and enforces the National Labor Relations Act (NLRA). The basic protection afforded employees "to act in concert for mutual aid and protection" as set forth in Section 7 of the NLRA extends to nonunion workforces. The current Board has been particularly aggressive in applying the NLRA to that type of workforce. Also, based on its recent history of decisions favoring employees over employers, extending Weingarten to virtually all employers, including those not organized by a union, is almost certainly an action that the current Board majority will favor. Understanding the contours of the Weingarten right is a preparatory exercise that employers would be wise to undertake.

THE WEINGARTEN RIGHT

An employee protected by Weingarten has the right to refuse to participate in a meeting - an "investigatory interview" - that he reasonably believes may result in his discipline unless he is assisted during the meeting by a union representative.

An employer violates the NLRA if it insists on continuing the meeting without affording the employee this right to representation, once asserted. Rather, the employer either must terminate the interview or pause to allow the presence of a representative.

The elements of Weingarten, at least as currently structured by Board law, are as follows:

The meeting is to investigate some situation, usually a claim that the employee has engaged in some workplace rules violation or other misconduct. The employee has an objectively reasonable fear that he faces discipline of some sort. The employee speaks up and asks for representation. The requested representative is a current non-supervisory employee, usually a predesignated type of union official, such as a shop steward. INVESTIGATORY INTERVIEW

For the Weingarten right to be invoked, the purpose of the meeting must be to gather facts, that is, to investigate. If the employer already has decided what its course of action...