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Discipline without Representation?

The request of an employee to have representation during an investigatory or disciplinary meeting with an employer should be agreed-to unless there are "extenuating circumstances" -- but not all such requests are valid and there are other cloudy Weingarten-right issues as well.

Monday, October 3, 2011
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Question: Does a supervisor have to inform an employee of their Weingarten rights when, during the course of a conversation or inquiry, the supervisor determines the conversation could possibly lead to disciplinary actions? Can you please explain Weingarten rights?

Answer: A supervisor does not have to provide an employee with prior notice of their Weingarten rights. Below is an easy to follow summary of Weingarten rights:

The Supreme Court set forth the rights of a unionized employee to be represented during a meeting with his or her employer that may result in discipline in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975). Accordingly, the discipline or discharge of an employee for refusal to cooperate in such a meeting without union representation is a violation of Section 8(a)(1) of the National Labor Relations Act. See Southwestern Bell Tel. Co., 227 N.L.R.B. 1223 (1977).

These rights, known as Weingarten rights, have been expanded and contracted by the NLRB numerous times over the last three decades.

The following are five main points about Weingarten rights that every HR executive should know:

The right may be exercised only by the employee.

It is the employee's choice whether or not to have a union representative present in a Weingarten situation. As the Supreme Court held in Weingarten, the "employee may forgo his guaranteed right and, if he prefers, participate in an interview unaccompanied by his union representative." Weingarten, 420 U.S. at 257.

While the employer and union may negotiate about and agree on whether the employer must notify the union of investigatory meetings or whether the employer must notify the employee of his or her Weingarten rights, neither the employer nor the union can impose or force representation on the employee. See Appalachian Power Co., 253 N.L.R.B. 931, 933 (1980) (if the right to be present at "a disciplinary interview could be asserted by the union representative, the employee no longer would have the choice of deciding whether the presence of the representative was more or less advantageous to his interests.").

Even if these rights were extended to non-union employees, the right to make the request would still rest exclusively with the employee; the NLRB cannot overrule a Supreme Court decision.

Employers have no duty to inform the employee of his or her Weingarten rights.

On the surface, Weingarten rights seem similar to the Miranda rights police officers read to suspects prior to custodial interrogations, where the failure to properly notify a suspect of his or her rights can result in evidence being suppressed and cases dismissed. In reality, however, this is not the case. The NLRB has decided that employers have no obligation to give notice to an employee of their Weingarten rights. Appalachian Power Co., 253 N.L.R.B. at 234 n.6.

The employer need only grant an employee's request for representation if the employee has a reasonable belief that the meeting could result in discipline.

The question of when a Weingarten request must be honored is a very important one to HR professionals. Weingarten rights are not so sweeping that a mere request by an employee in any context requires that the employer provide a representative.

The standard used by the NLRB to determine whether an employee reasonably believes the interview might result in disciplinary action is analyzed by an "objective standard" under all the circumstances of the case. This means the request must be evaluated on a case-by-case basis.

A purely investigatory meeting held to inquire into suspected misconduct clearly would require the presence of a representative, if requested. On the other hand, if the purpose of the meeting is merely to communicate a disciplinary decision that already has been made, then no such representative need be provided, even if requested. Baton Rouge Water Works Co., 246 N.L.R.B. 995, 1997 (1979).

The employee's right to representation become less clear when the purpose of the meeting does not fall within the category of purely investigatory or purely to communicate. All inquiries by an employer to an employee are not "investigatory," and sometimes the employer does not even know there is anything to investigate when a conversation begins.

However, even a conversation between a supervisor and an employee about improving the employee's production may trigger Weingarten rights if sufficiently linked to a real prospect of discipline for poor production. Quazite Corp., 315 N.L.R.B. 1068, 1070 (1994), remanded in part on other grounds sub nom. Quazite Div. of Morrison Molded Fiberglass Co. v. NLRB, 87 F.3d 493 (D.C. Cir. 1996).

Generally, however, the important question is whether or not there is some intent to investigate some matter at the outset; if not, there is no need to provide a representative.

This is the rule even if the meeting ultimately does result in some sort of discipline as Weingarten rights are evaluated at the time of the meeting, not afterwards. U.S. Postal Serv., 252 N.L.R.B. 61, 61 (1980) (employee not entitled to Weingarten representation at fitness-for-duty medical examination, in part, because "the absence of evidence that questions of an investigatory nature were in fact asked at these examinations"); NV Energy, Inc., 355 N.L.R.B. No. 7, slip op. at 1 (Jan. 29, 2010) (employee not entitled to representative where purpose of meeting was to follow up on complaints employee made about training-class instructors); Success Vill. Apartments, Inc., 347 N.L.R.B. 1065, 1071 (2006) (no representative required where meeting was to reiterate previously made non-disciplinary administrative decision).

If an employee makes a valid request for a Weingarten representative, the employer has three options.

If an employee who is entitled to representation invokes his Weingarten rights, the employer can (1) grant the request, (2) discontinue the interview or (3) offer the employee the choice between continuing the interview with no representative or discontinuing the interview altogether. See Washoe Med. Ctr., Inc., 348 N.L.R.B. 361, 361 n.5 (2006).

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The decision of whether to discontinue an interview should be made carefully. The employer should balance whether giving the employee an opportunity to tell his or her version of events is outweighed by other concerns. Situations where the interviews are not held or are discontinued should be rare, because the presence of representation at an interview will only add credibility to the investigation.

An employee who has the right to a Weingarten representative can select a particular person to attend the meeting, and the employer is obligated to provide the person, absent "extenuating circumstances." Anheuser-Busch, Inc., 337 N.L.R.B. 3, 7-8 (2001). The person selected could be a full-time, paid union representative, a steward or even a fellow employee.

"Extenuating circumstances," justifying denial of a particular representative, usually have to do with the representative's availability. The employer does not have to wait for days before the selected representative becomes available. Coca-Cola Bottling Co. of Los Angeles, 227 N.L.RB. 1276, 1279-80 (1977) (Friday request by employee for vacationing steward who was not to return until Monday reasonably denied). If the employee's request for a particular person to act as representative is reasonable under all the circumstances, then the request should be granted.

The selected representative can provide advice and active assistance to the employee, but cannot transform the meeting into an adversarial confrontation.

The Supreme Court held that the right to representation must not interfere with legitimate employer prerogatives. Weingarten, 420 U.S. at 258-59, 263. So, while an employer cannot direct the representative to be silent (Barnard Coll., 340 N.L.R.B. 934, 935 (2003)), the representative cannot take any action that is disruptive to the meeting. N.J. Bell Tel. Co., 308 N.L.R.B. 277, 279 (1992).

The representative's role is to advise the employee, not prove the employee's innocence. The representative does not have the authority to question managers or supervisors or determine areas of inquiry.

It is useful to note that the remedy for an employer's violation of Weingarten rights is not make whole relief, if the employee was disciplined for just cause. See Taracorp Indus., 273 N.L.R.B. 221, 222 (1984).

If the employer violates the Weingarten rights by excluding the union's representative from a disciplinary interview and subsequently terminates the employee solely because of the employee's misconduct, then the NLRB may only enter a cease-and-desist order.

Repeated violations of Weingarten rights would offend that order and would subject the employer to penalty for violation of that order. Id. at 223-24.

Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer in New York and co-chair of the Department's Employment Litigation and Arbitration Practice Group.

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