1. INTRODUCTION
Many non-union employers assume that the National Labor Relations Act (NLRA) has no effect on their company. Recent rulings of the National Labor Relations Board (NLRB) demonstrate the need for non-union employers to be aware of their employee’s rights under that Act. This article highlights only a few of the many NLRA rights that may challenge non-union employers.
2. EXPANSION OF WEINGARTEN RIGHTS
On July 10, 2000, the National Labor Relations Board (NLRB) ruled that nonunion employees have the right to have a coworker present during an investigatory interview. This decision expands the scope of the 1975 Supreme Court case NLRB v. Weingarten, Inc., 420 U.S. 251 (1975), which awarded unionized employees the right to have a representative present during an investigatory interview.
This surprising ruling arose from the discharge of an employee from a non-union employer for his refusal to meet with two supervisors without a coworker present. The employee had been reprimanded by the supervisors at a prior meeting and felt intimidated by the prospect of going alone to another such meeting. The following day, the employee was discharged for insubordination.
The NLRB held that the employer violated National Labor Relations Act (NLRA) Section 8(a)(1). “Employees in nonunionized workplaces [have] the right to have a coworker present at an investigatory interview which the employee reasonably believes might result in disciplinary action.” Epilepsy Foundation of Northeast Ohio, 331 NLRB 92. In so doing, the Board overruled its previous position that such rights do not apply in circumstances where there is no certified or recognized union.
Two dissents were filed in this case. One dissenter expressed his concern that “[e]mployers who are legitimately pursuing investigations of employee conduct will face an unknown trip-wire placed there by the Board. Employers in a nonunion setting will generally be completely unaware of this right to representation that the Board is imposing on them.” Another Board member added that the majority decision “creates a representational right in employees who have not made the choice to be represented by a union.” Frankly, we could not have said it better ourselves!
There are four important points that employers need to be aware of regarding nonunion employees and their Weingarten rights:
Finally, as a result of the expansion of Weingarten rights to non-union employers, non-union employees may not be disciplined for making the request that a co-worker be present during an interview investigating an alleged violation of work rules or conduct. To do so is now deemed a violation of the NLRA. An employer that terminates an employee who refuses to proceed with such an investigatory interview without a representative may be required by the NLRB to reinstate the discharged or disciplined employee to his or her former position and compensate the employee for any lost earnings or other benefits. It is also possible that an employee discharged for insubordination in asserting these federally protected rights might well be able to file a wrongful discharge action in state or federal court. Such a suit could allow recovery of emotional distress and punitive damages.
3. CONCERTED ACTIVITIES
Unfortunately, Weingarten rights are not the only NLRA issues that a non-union employer must consider. The NLRA protects an employee’s “concerted activities” whether or not it is union activity. Under the Act, employees have the right to engage in concerted activities for the purpose of collective bargaining or other “mutual aid or protection.” Determining when an employee has engaged in concerted activity is frequently a difficult process. This article highlights two types of conduct, however, which non-union employers might mistakenly discipline.
The right of concerted activity includes the right to effectively communicate with one another regarding self-organization at the jobsite. Since compensation is a key objective of organizational activity, any rule which restrains an employee’s ability to discuss wages may interfere with the employee’s right to engage in protected concerted activity. A recent federal circuit court decision ruled that a non-union employer’s oral rule against employee’s sharing wage information violated the employee’s right to engage in concerted activity. This case did not arise during a campaign to organize a union. Several other circuit courts around the country share this opinion. Accordingly, any formal or informal rules prohibiting discussions of compensation should be discontinued.
Recently, a non-union employer was found to have violated the NLRA by discharging an individual who had remedied several wage related problems on behalf of her co-workers and advised another co-worker to file a grievance about a work related dispute. The discharge employee acted on her, but on behalf of her co-workers. Again there was no organization campaign or group activity. Nonetheless, an individual employee may be engaged in concerted activity when he acts alone.
For an individual’s complaints to constitute concerted action, the complaints must not have been made solely on behalf of an individual employee, but they must be made on behalf of other employees or at least with the object of inducting or preparing for group action. It is not necessary that an employee be appointed by his fellow employees in order to represent their interests. The question is whether the employee acted with the purpose of furthering group goals. Thus, protests by an employee on behalf of other employees concerning wages, hours and working conditions, as well as the presentation of job-related grievances are activities protected by the NLRA. Employers considering discipline against employees who have engaged in such action on behalf of other co-workers must carefully consider whether the employee or a judge will link the discipline to the concerted activity.
4. CONCLUSION
This is a brief treatment of complicated labor rules that regulate a non-union employer’s right to manage its workforce. Individual cases may result in different outcomes. Please consult an attorney with respect to application of these rules to your particular workforce. The “moral of this story”, however, is that non-union employers can no longer ignore the NLRA. Non-union employers must be familiar with the sections of that Act that have applicability beyond union environments. Failure to consider those sections when disciplining employees for activity that could be “concerted” could result in a claim being filed against the employer with the NLRB.
Many non-union employers assume that the National Labor Relations Act (NLRA) has no effect on their company. Recent rulings of the National Labor Relations Board (NLRB) demonstrate the need for non-union employers to be aware of their employee’s rights under that Act. This article highlights only a few of the many NLRA rights that may challenge non-union employers.
2. EXPANSION OF WEINGARTEN RIGHTS
On July 10, 2000, the National Labor Relations Board (NLRB) ruled that nonunion employees have the right to have a coworker present during an investigatory interview. This decision expands the scope of the 1975 Supreme Court case NLRB v. Weingarten, Inc., 420 U.S. 251 (1975), which awarded unionized employees the right to have a representative present during an investigatory interview.
This surprising ruling arose from the discharge of an employee from a non-union employer for his refusal to meet with two supervisors without a coworker present. The employee had been reprimanded by the supervisors at a prior meeting and felt intimidated by the prospect of going alone to another such meeting. The following day, the employee was discharged for insubordination.
The NLRB held that the employer violated National Labor Relations Act (NLRA) Section 8(a)(1). “Employees in nonunionized workplaces [have] the right to have a coworker present at an investigatory interview which the employee reasonably believes might result in disciplinary action.” Epilepsy Foundation of Northeast Ohio, 331 NLRB 92. In so doing, the Board overruled its previous position that such rights do not apply in circumstances where there is no certified or recognized union.
Two dissents were filed in this case. One dissenter expressed his concern that “[e]mployers who are legitimately pursuing investigations of employee conduct will face an unknown trip-wire placed there by the Board. Employers in a nonunion setting will generally be completely unaware of this right to representation that the Board is imposing on them.” Another Board member added that the majority decision “creates a representational right in employees who have not made the choice to be represented by a union.” Frankly, we could not have said it better ourselves!
There are four important points that employers need to be aware of regarding nonunion employees and their Weingarten rights:
1. | The employee must request that a co-worker/representative be present, the employer does not have to make the offer; | |
2. | The rights only apply to investigatory interviews – not to disciplinary meetings or discharge conferences which do not have an investigatory component; | |
3. | The employer only has to allow a co-worker/representative to be present, but does not have to allow an outsider such as an attorney to attend the meeting; and | |
4. | While the representative has the right to ask questions and make comments, the representative does not have the right to obstruct the process or bargain on behalf of his or her co-worker. However, it is important that the employer remember that the representative is not just a witness and if the employer insists that the representative only act in that capacity, the employee’s Weingarten rights have been violated. |
3. CONCERTED ACTIVITIES
Unfortunately, Weingarten rights are not the only NLRA issues that a non-union employer must consider. The NLRA protects an employee’s “concerted activities” whether or not it is union activity. Under the Act, employees have the right to engage in concerted activities for the purpose of collective bargaining or other “mutual aid or protection.” Determining when an employee has engaged in concerted activity is frequently a difficult process. This article highlights two types of conduct, however, which non-union employers might mistakenly discipline.
A. Policy Barring Discussion of Compensation |
B. Individual Representation of Group Concerns |
For an individual’s complaints to constitute concerted action, the complaints must not have been made solely on behalf of an individual employee, but they must be made on behalf of other employees or at least with the object of inducting or preparing for group action. It is not necessary that an employee be appointed by his fellow employees in order to represent their interests. The question is whether the employee acted with the purpose of furthering group goals. Thus, protests by an employee on behalf of other employees concerning wages, hours and working conditions, as well as the presentation of job-related grievances are activities protected by the NLRA. Employers considering discipline against employees who have engaged in such action on behalf of other co-workers must carefully consider whether the employee or a judge will link the discipline to the concerted activity.
4. CONCLUSION
This is a brief treatment of complicated labor rules that regulate a non-union employer’s right to manage its workforce. Individual cases may result in different outcomes. Please consult an attorney with respect to application of these rules to your particular workforce. The “moral of this story”, however, is that non-union employers can no longer ignore the NLRA. Non-union employers must be familiar with the sections of that Act that have applicability beyond union environments. Failure to consider those sections when disciplining employees for activity that could be “concerted” could result in a claim being filed against the employer with the NLRB.