As an HR professional or a business owner, you may—or may not—know that the National Labor Relations Act (NLRA), the federal law that governs the relationship between unions and employers in the private sector, also applies to nonunion employers in certain situations. For instance, the NLRA covers all concerted activity by employees, whether it occurs in a union or nonunion workplace.
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The term “concerted activity” is broadly defined to cover actions undertaken by employees for the “mutual aid and protection” of others. Thus, concerted activity isn’t limited to situations involving union membership—it can be any activity taken by employees to improve their working conditions, even in a nonunion setting.
But what if a nonunion employee who is about to be interviewed by management in a workplace investigation wants a coworker to accompany him and assist him during the interview? Is he entitled to representation? What if he’s a union employee? This article reviews the right to representation in such interviews for both union and nonunion employees.
Bill, Would you Come to My Office, Please?
Consider this hypothetical scenario in your workplace: The accounting department realizes the use of expensive printer cartridges has tripled in the office over the past quarter. There’s no obvious reason for the increase, but the accounting supervisor recently saw a Facebook post in which Bill, a sales employee, posted high-quality, professional-looking color advertisements for his wife’s new business.
The accounting supervisor suspects Bill is using the company printer to reproduce the advertisements at work—in other words, using company resources to conduct personal business on company time. The accounting supervisor informs the HR manager, Mary, and together, they review video footage showing Bill making what appears to be an exceptionally high number of copies of something—it’s unclear what.
Like any good HR manager, Mary won’t make a decision about what happened until she has completed a fair, unbiased investigation. So she organizes the evidence, drafts questions, and prepares to interview Bill. When she summons him to a meeting in her office, Bill—who is now quite nervous—tells Mary, “I would like to have someone there who can explain to me what is happening.”
Is Bill legally entitled to have “someone there” as a representative during the meeting? Is his statement really a request for representation? Like many things in labor and employment law, those questions are fact-specific, so some background is necessary.
Weingarten: Setting the Standard
In 1975, the U.S. Supreme Court held that an employer is required to accept an employee’s request to have a union representative or some other third party at a meeting the employee reasonably believes may lead to discipline. In National Labor Relations Board v. J. Weingarten, Inc., the Court concluded that to be afforded so-called Weingarten rights, an employee must request representation, but he need not use any “magic words” to make the request. It’s enough if the language he uses is reasonably calculated to inform the employer that he is seeking such assistance. Weingarten requests are interpreted liberally, and the employee only has to make a statement that puts the employer on notice of his desire for representation.
Representation for Nonunion Employees?
The Weingarten case established union employees’ rights to representation at investigative interviews that could lead to discipline. But do nonunion employees have the same rights? No. The answer to that question has changed many times over the years, however.
The 1975 Weingarten decision dealt with a union employee requesting representation but left open the question of whether nonunion employees are afforded similar representation rights. It wasn’t until 1982 that the National Labor Relations Board (NLRB) first held that nonunion employees Weingarten, despite their nonunion status.
Since 1982, however, the NLRB has reversed itself multiple times, and current Board precedent states that nonunion employees Weingarten rights. While such a policy about-face may seem odd, federal agencies have immense power in interpreting the laws they are legislatively tasked with enforcing. Thus, the NLRB has explicitly stated that either interpretation of nonunion employees’ Weingarten rights is a “permissible interpretation of the [NLRA].”
The U.S. Court of Appeals for the D.C. Circuit, often called the second most powerful court in the country, has ruled that the NLRB has the authority to extend Weingarten rights to nonunion employees. Because the president nominates NLRB members, Weingarten rights are a classic example of how a change in the occupant of the White House has an impact on NLRB decisions. So while the NLRA indisputably applies to nonunion employees, Weingarten rights are not afforded to nonunion employees under NLRB precedent.
But what does it all mean for Bill? Find out in tomorrow’s Advisor!
Seth Thompson is an employment law attorney with Vogel Law Firm, practicing in the firm’s Bismarck, North Dakota, office. He is a contributor to North Dakota Employment Law Letter. He may be contacted at sathompson@vogellaw.com.