NLRB GC May Stop Obama Board’s Expansion of Weingarten Rights

Many employers (and this management-side labor lawyer in particular) were surprised by the Obama Board’s inability to overturn IBM Corp., 341 NLRB 1288 (2004), and extend Weingarten rights to non-union employees. The Obama Board, nevertheless, expanded the scope of Weingarten rights in a few areas.

  1. Manhattan Beer: The Obama Board ruled that a beer distributor violated the NLRA by terminating a unionized employee for refusing to take a drug test without first providing him with a reasonable opportunity to consult in person with an authorized union representative, despite the fact that the employee was able to consult with a union representative via telephone.
  2. Howard Industries: This case broadened the range of permissible conduct by union representatives in Weingarten interviews to include allowing union representatives to assist witnesses by providing scripted answers.
  3. Fry’s Food Stores: The Obama Board ruled that Weingarten required an employee to have right to consult with a union representative not only during the investigatory interview, but also before the interview, even without the employee requesting such a meeting.

The Trump NLRB General Counsel issued GC Memo 18-2 which previews that his office will seek to rein in the Obama Board’s overreach by requiring Regions to submit to the Division of Advice any matters involving the range of permissible conduct by union representatives in Weingarten interviews and matters involving the application of Weingarten in the drug-testing context.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 843-3041 or emailing him at Matt@MattAustinLaborLaw.com.

Labor Board Tried (but Failed) to Expand Weingarten Rights to Non-Union Companies

An employee’s Weingarten rights is something that everyone dealing with a unionized workforce is familiar with. Perhaps you didn’t know the name, but you know that union employees are entitled to have a representative present during compulsory, investigatory interviews that may lead to discipline. Weingarten rights only apply to union employees. This is black letter law. The nuances can be tricky, though.

These nuances have led to a lot of litigation. For example, can the union assert representation on behalf of the employee or must the employee assert it? Does the employee get to pick the particular union representative? What if the chosen union representative is not available during times the employer wants to conduct the interview? What is the role of the union representative during the interview – is the representative an advocate or a listener? Does a violation of Weingarten rights overturn discipline administered as a result of the offending interview?

Here, two nurses received a “peer review” letter alleging that they “exhibited unprofessional conduct” as defined by the Kansas Nurse Practice Act. Each nurse was granted an opportunity to address the Peer Review Committee regarding any potential reportable incident. The letter stated this meeting would occur “only if you choose.” In lieu of appearance, the nurses could submit a written response.

Both nurses asked for union representation at the meeting. Both requests were denied. In the end, the nurses violated the Act, but the violation was so low that it was not reportable to the Nursing Board. Nonetheless, the nurses filed unfair labor practice charges and the NLRB sued the employer alleging that the nurses’ Weingarten rights were violated when they were denied representation at the meetings. On appeal, the appeals court concluded that because the employer’s letter told the nurses they could attend “if they choose” or submit a written response, attendance was not compulsory and Weingarten was not triggered.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com.

No Need for Union Witness During Police Interrogation with Management Present

The National Labor Relations Board held that an employer did not violate a union worker’s rights during a police investigation of the worker’s gun violence threat by not providing the worker with a union representative because the investigation was conducted by the police, not the company.

Here’s the back story: An EMT learned that the Operations Manager planned to fire the EMT’s girlfriend. The EMT responded by telling his coworker, “if things go the way they are looking, I’ll come shoot everyone here.” The concerned coworker reported these comments to management who contacted the police department seeking advice in how to respond. The police dispatched an officer to the employer’s workplace. The officer spoke with the EMT in the presence of the Operations Manager (who did not say anything). The company terminated the EMT.

Seasoned labor practitioners will know this case turns on an employee’s Weingarten rights. Weingarten rights say that an employee represented by a union has the right to request that a union representative be present during an investigatory interview which the employee reasonably believes could result in disciplinary action. The burden is on the employee to make this request.

The EMT did not request union representation during this interview. Nonetheless, the EMT was not entitled to union representation because the interview was not an “investigative interview” for which the Weingarten rights apply. Rather, the interview was a police interrogation. Not every meeting with employees constitutes an investigative interview under Weingarten, and even if an investigative interview does take place, the employee must actually request union representation to invoke his Weingarten rights.

Matt Austin who owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.

Peer Review Meetings Warrant Weingarten Rights

A hospital informed two nurses that a peer review committee had reviewed cases in which they may have “exhibited unprofessional conduct.” The employees’ request for union representation at follow-up meetings was denied. If those follow-up meetings determined that unprofessional conduct occurred, the hospital was required, by state statute, to report such conduct to the state Board of Nursing. The Board of Nursing would then determine whether any action should be taken against the employees. Under Weingarten, an employee has a right to be represented at an investigatory interview if the employee has a reasonable belief that the interview may result in disciplinary action. Although the peer review meetings did not directly result in employee discipline, they could have resulted in discipline through the state Board of Nursing. This, according to the National Labor Relations Board, was connection enough to rule that these meetings fell within Weingarten and the employees were entitled to union representation.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

NLRB Reinstates Fired Employee Because Employee Denied Union Rep before Drug Test

A manager noticed that a delivery driver “reeked of the smell of marijuana.” The manager informed the employee that he would assign him a route for that day only if he agreed to take a drug test. The employee called the union shop steward, but it was the steward’s day off, so he could not accompany the employee to the drug test. The manager told the employee that if he failed to take the test, he would be treated as if he had tested positive, which could result in termination. The employee never took the test, and the Company terminated him later that day.

A well-known U.S. Supreme Court decision NLRB v. Weingarten provides that an employee has a statutory right to request the presence of a union representative during an investigatory interview if the employee reasonably believes the interview may result in disciplinary action. Here, the Board found that the employee had been presented with an ultimatum of taking the drug test immediately without representation or being treated as if he had tested positive and thus face termination.

The Board explained that Weingarten also addressed the physical presence of a union representative to assist an employee. Because the Company was concerned that the employee was under the influence of marijuana based on the employee’s appearance and odor, the Board reasoned that the physical presence of the union representative was necessary so that the representative could independently observe the employee’s condition and potentially contest the grounds for the company’s suspicions.

The Board ultimately concluded that the employee’s discharge was inexplicably linked to his assertion of Weingarten’s rights because he refused to take the test without having his union representative present. The Board ordered reinstatement with back pay. If you’re confused about this outcome, I was too, until I remembered some of the more egregious head-scratching decisions rendered by the current NLRB.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Suspension Threat to Union Rep Unlawful

Weingarten rights permit employees to have a union representative attend an investigative interview the employee reasonably believes may result in discipline. The union representative can assist the interviewee. But how much assistance can be rendered was recently litigated when a manufacturer threatened a union steward with suspension for using notes during an investigatory meeting.

The union steward met with the employee before the interview and took notes. While the company questioned the employee, the steward showed his notes to the employee who began reading the notes aloud. This prompted the supervisor to instruct the steward to close the book. The steward refused, and the supervisor threatened him with a suspension. At hearing, the administrative law judge (ALJ) explained that the company could insist on hearing the employee’s account of what happened and found that the company disciplined the steward for giving the employee a prepared response, not for taking notes during the interview. The Board disagreed and reversed the ALJ.

An employee’s Weingarten rights extend beyond simply having a union representative present during an interview. Representatives are, in fact, allowed to represent the person being interviewed.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Search of Company-Owned Vehicle Not Investigatory Interview Triggering Weingarten Rights

An employer found a bag of marijuana beneath empty chairs where an employee and co-worker had recently sat. The employer investigated the situation, individually interviewing the employee and co-worker. During the investigation, the employee invoked her Weingarten rights and requested a union representative. The Company obliged. After the interview, the employee went to lunch and a manager went to search the company car used by the employee. The manager did not find any illegal drugs, but did find a pornographic DVD, which prompted another interview with the employee. The employee admitted it was her video, and she was disciplined.

The employee thought that searching her company-owned car was a continuation of the investigation for which she and her union representative were entitled to be present. She was wrong. According to the NLRB Division of Advice, “When the Employer searched the company vehicle, it did not engage in a confrontation with the Employee and did not ask the Employee any questions, even implicitly. Instead, the Employee was not present for the search, was not asked to aid in the search, and was not even aware the search was taking place. Because the Employer asked nothing of the Employee, the Employee had no need for a Union representative’s assistance.”

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.