Published November 2000

Non-union workers
allowed representation

By Jack Goldberg
Columnist

The National Labor Relations Board recently decided that all employees, including non-union employees, are entitled to have a representative present at any interview conducted by an employer that might result in disciplinary action. Employers with non-union employees need to be aware of this ruling to avoid inadvertent unfair labor practices.

Before the NLRB’s ruling, only unionized employees had the right to have a representative present during an investigatory interview. Now, whenever an employer decides to conduct an investigation and interview an employee, the employer must grant the employee’s request to have a representative present, so long as the employee reasonably believes that the interview might result in disciplinary action against him or her.

The NLRB based this employee right on NLRB v. Weingarten, a 1975 U.S. Supreme Court decision. In Weingarten, the employer had called in an employee for questioning regarding allegations that she had taken money. During the questioning, the employee repeatedly asked the manager to call in the union shop steward or other union representative, but the manager refused to do so.

The Supreme Court held that previous NLRB decisions finding that employees have the right to “refuse to submit without union representation to an interview in which they reasonably fear may result in their discipline” was a permissible construction of the language in the National Labor Relations Act that says employees have the right to engage in “concerted activities for mutual aid or protection.”

In other words, the request for union representation in the interview fit within the definition of “concerted activities for mutual aid or protection.”

The NLRB’s current decision reasoned that the protection of these concerted activities is applicable to employees who are not represented by a union. The board said the right to have a co-worker present in an investigatory interview enhances employees’ opportunities to act in concert to address their concern that the employer does not initiate or continue a practice of imposing punishment unjustly.

This ruling surprised non-union employers in “at will” states who generally expect and have the right to deal with their employees individually.

Now, the employer can face charges of unfair labor practices unless he or she allows employees to have a co-worker present at an investigatory interview that the employee reasonably believes might result in disciplinary action.

Whatever frustration this new ruling may cause, employers are wise to heed an employee’s request to have a co-worker present in these types of interviews and to allow the co-worker’s participation to the extent provided in the case.

There are limitations to the requirement, limitations that appear to include:

• The employee must ask to have a co-worker present. There is no employer duty to offer an employee the right to have the co-worker in the interview.
• An employer is not required to allow the co-worker when the employee objectively has no reason to fear discipline.
• The employee’s right to representation at the interview is limited to co-workers and does not extend to non-employee representatives, such as family members or attorneys.
• An employer is not obligated to proceed with an investigatory interview if the employee requests a co-worker representative. The employer can choose to forgo the interview and continue with the investigation without input from the employee.
• An employee must meet with the employer and answer questions if the requested co-worker is present. Presumably, the failure to meet or answer questions can be grounds for employee discipline.
• The co-worker representative does not have a right to interfere with the investigation; he or she can consult with the employee and be of comfort to the employee but is not permitted to debate with the investigator.

Employers should educate managers and supervisors who might be involved in questioning and disciplining employees so they are not caught unaware. Whether or not employers will have to educate employees on this right is still up for debate; such rights may become part of required employer postings or education.

Jack Goldberg is president of Personnel Management Systems Inc., with offices in Everett, Bellevue and Tacoma. The PMSI Web site is at www.hrpmsi.com.

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