By William J. Kishman, Attorney, Bingham Greenebaum Doll LLP
While some recent National Labor Relations Board decisions have received a great deal of attention, other key cases have fallen under the radar. Even cases where the NLRB does not create new law may still warrant attention, because they can illustrate the “Obama Board’s” view of established labor issues. A prime example is the NLRB’s recent decision in General Die Casters, Inc., where it subtly shifted its approach to Weingarten rights.
The Weingarten doctrine – which grants union-represented employees the right to union representation during “investigatory” meetings – can create many potential pitfalls for employers’ investigations of workplace misconduct. (It is also important to remember that some collective bargaining agreements also permit employees to have union representatives present during certain meetings. Although this article simply addresses the rights created by federal labor law, you should ensure that you understand and comply with any contractually created Weingarten-type rights as well.) Although the NLRB did not create new law in General Die, it addressed Weingarten rights from a far more “union-friendly” perspective. Before conducting investigatory meetings with union-represented employees, employers should consider the following three lessons that can be gleaned from this decision.
- Employees can invoke Weingarten rights with even vague or unclear statements.
The NLRB has long held that an employee is not entitled to union representation during an investigatory meeting unless the employee actually requests it. Unfortunately, in General Die, the current NLRB showed that it defines “request” broadly.
The meeting at issue arose when the employer’s plant manager and a human resources manager met with a union-represented employee to issue him a written warning for past misconduct. After the managers issued the warning, however, they began to counsel the employee on an unrelated issue – his habit of initiating altercations with his supervisor about whether his work fell outside his job classification. As soon as the managers shifted the conversation to this topic, the employee asked whether he needed “to get somebody else in here.” He did not, however, expressly request a union representative.
When the case came before the NLRB, the employer argued that the employee never actually invoked his Weingarten rights, because he simply questioned whether he needed a representative, but never actually requested one. The NLRB disagreed and, in doing so, applied a union-friendly view of what constitutes a “request.” According to the NLRB, because the employee made a statement about a union representative possibly attending the meeting, the employer should have known that he wanted one.
If the NLRB continues to apply this standard, employers should note that even vague or ambiguous statements about union representatives could constitute requests for Weingarten rights. As set forth below, the potential penalties for failing to provide union representation, when it is required, can be harsh. Accordingly, if a union-represented employee even alludes to Weingarten rights, and if the meeting is truly “investigatory” (as set forth below), you should either treat the employee’s statement as a request or call off the conversation in a non-coercive manner in order to avoid incurring NLRB sanctions and potentially undermining your investigation.
- When conversations are not “investigatory,” make this clear to employees.
Under current NLRB law, Weingarten rights can arise only if the meeting in question is “investigatory.” An investigatory meeting occurs when an employer questions a union-represented employee about a matter the employee “reasonably believes could result in discipline.” Accordingly, under this analysis, the key question is not what actually happens, but what the employee reasonably thinks could happen. As illustrated by General Die, this can create problems for employers, as the current NLRB applies a liberal test for whether an employee’s belief is “reasonable.”
After General Die’s managers began counseling the employee on his altercations with his supervisor, they gave little indication that they needed to “investigate” his misconduct. The managers simply advised the employee that they knew about his alleged misconduct. Then they took the time to explain why they believed he was wrong and why he was required to perform the assigned jobs. Ultimately, the plant manager did make a statement that could be construed as a question, as he asked the employee why he was always initiating altercations with his supervisor. Based on the context, however, it appeared the manager was simply expressing his frustration with the employee’s repeated misconduct, not attempting to obtain additional information.
Despite the limited questioning, the NLRB nevertheless found that the employee reasonably believed the managers were investigating a matter that could give rise to discipline. The NLRB held that the managers’ limited questioning, coupled with the fact that they were clearly upset with the employee’s actions and had just disciplined him for other misconduct, gave the employee a sufficient belief that the managers were investigating potential misconduct.
If you find yourself in a similar situation, there are a few simple steps you can take to prevent a meeting from becoming “investigatory.” First, if you do not intend to seek additional information that could support discipline, you should mention this to the employee at the onset of the meeting. If you advise the employee immediately that you simply want to counsel him or her, issue a discipline, or otherwise instruct the employee on a matter, you will significantly reduce the chance the employee could reasonably believe the meeting is investigatory. The NLRB has even held that a manager’s demeanor can impact whether an employee’s belief is reasonable; thus, to help prevent Weingarten rights from arising in non-investigatory meetings, you should address employees in a firm, even-handed manner and avoid heated discussions. Taking these steps can help prevent Weingarten rights from attaching to otherwise non-investigatory meetings.
- Before disciplining employees, plan your investigation thoroughly and follow other investigatory best practices.
Perhaps the most harmful aspect of Weingarten is its potential for undermining investigations and disciplinary actions. If an employer commits a Weingarten violation during an investigatory meeting, the NLRB can bar the employer from using evidence it obtained in the meeting to support discipline and rescind any discipline that relied on that evidence. Because the NLRB in General Die extended Weingarten protections even further for problem employees, it is now more important than ever to proceed carefully before disciplining these poor performers.
In determining that General Die’s meeting was “investigatory,” the NLRB relied largely on the fact that the employee at issue was a poor performer. According to the NLRB, because the employer disciplined the employee often, and because many of the managers’ conversations with him were held to investigate potential misconduct, the employee reasonably believed the meeting at issue was held to investigate potential misconduct. By reaching this conclusion, the NLRB created dangerous precedent, as it effectively held that poor performers are more likely to have Weingarten rights than employees who perform their jobs without creating problems.
As most employers understand, many potential pitfalls can arise when disciplining problem employees, and the NLRB’s decision makes it even more important to proceed carefully in these cases. As set forth above, if you are meeting with a poor performer and do not intend to investigate potential misconduct, you should make this clear at the onset in order to decrease the chances of Weingarten rights arising. If, on the other hand, you do intend to question the employee about misconduct, it is prudent to grant any request for union representation. Although you obviously would prefer to proceed without a union representative present, the representative cannot instruct the employee to refuse to answer legitimate questions, and denying the employee’s request could taint any evidence you obtain.
Finally, to mitigate the potential problems resulting from General Die, you should follow other “best practices” before disciplining poor performers. You can make discipline more likely to withstand challenge by, for example, interviewing all other available witnesses, ensuring that all employees are disciplined consistently, and working with counsel to protect certain investigatory notes and witness statements from union information requests. Because the NLRB’s recent decision expands the ways problem employees can challenge discipline, it is now particularly important to follow these precautions.
If you have questions about how Weingarten rights may impact your employment practices, please contact a member of Bingham Greenebaum Doll LLP’s Labor and Employment Practice Group.
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