Article Kirkland & Ellis LLP

Representation Rights for Non-Union Employees

On July 10, 2000, a divided National Labor Relations Board did an abrupt about-face and determined that employees who are not union-represented nevertheless have a right under the National Labor Relations Act to request the presence of a fellow employee at an employer-conducted investigatory interview if the employee reasonably believes that the interview may result in discipline. Epilepsy Foundation of Northeast Ohio, 331 NLRB No. 92. A similar right was accorded union-represented employees by the Supreme Court in 1975. NLRB v. Weingarten, 420 U.S. 251 (1975).

In Epilepsy Foundation, three of the Board's five members (Truesdale, Fox and Liebman) held that an employee's right to a fellow employee's presence at an investigatory interview is provided by Section 7 of the NLRA, which guarantees employees the right not only to engage in "union" activity, but also to engage in "concerted activities for . . . other mutual aid or protection." Once before, the Board flirted with the extension of "Weingarten" representational rights to non-union employees, Materials Research Corp., 262 NLRB 1010 (1982), but abandoned that effort. E.J. DuPont & Co., 289 NLRB 627 (1988).

In Epilepsy Foundation, the Board majority argued that "the right to the presence of a representative is grounded in the rationale that the Act generally affords employees the opportunity to act together to address the issue of an employer's practice of imposing unjust punishment on employees." Slip op. at p. 2. The majority rejected arguments from dissenting Board members Hurtgen and Brame and others that no compelling circumstances warranted reversal of established precedent, that the balance would be upset between employee assistance and unfettered employer investigations, that the Board is placing an "unknown trip wire" on employers who are legitimately pursuing investigations of employee conduct, and that employers will be forced to "deal" with employee witnesses as with union bargaining representatives.

The practical impact of the Board's extension of Weingarten rights to non-union employees is certain to cause upset and confusion for employers and employees. This is particularly so for employers whose employees are not represented by unions and who therefore are not familiar with the nuances of NLRB doctrines. For instance, even unionized employers are not required to permit representation of employees during purely "disciplinary" interviews in which discipline is simply meted out, as opposed to more preliminary fact-gathering "investigatory" interviews. Under Weingarten, too, an employee must request the presence of a union representative and an employer may forego the investigatory interview altogether rather than accede to the employee's request. There will be additional complications and uncertainties, too, concerning the role of the representative during the interview, the employee's choice of a representative and whether the right extends to "outsiders" such as attorneys or union organizers, the representative's immediate availability, and the employee's right to confer with the representative before the investigatory interview begins. The Board's decision, too, will afford new organizing opportunities as unions coach employees and as employees become more accustomed to expanded representational rights. And surely, the NLRB will experience a surge in unfair labor practice charges against employers while word of the Board's new holding spreads and while the Board's decision and its retroactive application are tested in federal circuit courts of appeals and ultimately in the Supreme Court.

Employers whose employees are not represented by unions and who, thus, may be unfamiliar with existing Weingarten representational rights must familiarize themselves with the requirements and practical effects of the Board's new decision. Failure to do so will result not only in unnecessary and wasteful litigation, but also backpay liability and the undoing of discipline imposed after investigatory interviews at which employee requests for the presence of a representative have been denied.

John S. Irving is a partner in Kirkland & Ellis' Washington, D.C. office.