"Weingarten" Right to Representation Extended to Non-Union Employees and Workplaces

In a decision with potentially broad-ranging impact, the National Labor Relations Board (“NLRB” or “the Board”) has ruled that a non-union employee now has the right, upon request, to have a co-worker present at an investigatory interview that the employee reasonably believes may lead to discipline, Epilepsy Foundation of Northeast Ohio, 331 NLRB No. 92 (July 10, 2000).In so ruling, the Board extended the right previously afforded only unionized employees by NLRB v. Weingarten, 420 U.S.251 (1975) to all employees.The Board also found that the termination of an employee for demanding that a co-worker be permitted to accompany him at an investigatory interview violated the National Labor Relations Act. Reinstatement with backpay was ordered.

It must be noted that the broad impact of the Board’s decision in Epilepsy Foundation is limited, however, by the following principles.

• The so-called Weingarten right to a representative arises only in situations where the employee requests representation;
• The burden is on the employee to make the request. Employers have no obligation to advise employees of the Weingarten right or to ask them, specifically, whether they would like a co-worker to be present during the interview;
• The right applies only in situations where it can objectively be stated that the employee “reasonably believes the investigation will result in disciplinary action.”It does not apply to run-of-the-mill workplace conversation, training, giving corrections, etc., or where an employee is simply being advised of a decision, already made, to impose discipline;
• Only a co-worker can be the non-union employee’s representative at an investigatory interview. The non-union employee has no right to bring an attorney, family member, clergyman, “union” representative or other non-employee third party;
• The employee has no right to insist on the presence of a particular co-worker as representative if the individual is unavailable when the employer wishes to conduct the investigatory interview;
• The co-worker/representative may assist, advise and consult with the employee (including prior to the meeting) but may not obstruct the meeting or convert it into an adversarial proceeding.

Nevertheless, employers must proceed with caution. Employers may be committing unfair labor practices by (i) denying an employee’s request to have a co-worker present, (ii) proceeding with disciplinary action despite such a request or (iii) retaliating against employees who seek to exercise their Weingarten/Epilepsy Foundation rights