September 5, 2000

RE: Labor Law Update:

(1) New Rights for Nonunion Employees During Investigations

(2) Temporary Employees Can Now Organize Alongside Regular Employees

To Our Clients and Friends:

The National Labor Relations Board issued two decisions this summer which have an important impact in the workplace. First, the National Labor Relations Board held that a nonunion employee has the right, upon request, to have a co-worker of his or her choice present during an investigative meeting with management if the employee reasonably believes the meeting could result in disciplinary action. Second, on August 25, 2000, the National Labor Relations Board reversed Board precedent and issued a decision that allows contingent or temporary workers that are placed with an employer by a temporary employment agency to participate in representation efforts with so-called regular employees.

The Board’s Expansion of the “Weingarten” Right

Settled law provides that a union employee has the right to request the presence of a union steward during a meeting or interview with management if the union employee reasonably believes the meeting or interview could result in disciplinary action. This right is commonly referred to as the Weingarten right named after the United States Supreme Court case first recognizing this right in 1975. The union steward’s presence is to assist the union employee during the meeting in dealing with management and, in particular, to use his or her knowledge of the terms of the collective bargaining agreement to assist the union employee with the issue at hand. Prior to this summer’s decision, it was also settled law that nonunion employees did not have the same right to insist that a co-worker be present during meetings or interviews with management even if the employee reasonably believed that discipline could result. The rationale behind this difference is twofold. Nonunion employees do not need assistance in dealing with an employer with regard to the terms of a collective bargaining agreement as there is no collective bargaining agreement in a nonunion setting. Also, unlike the union setting, in a nonunion setting, employers have the right to deal with employees on an individual basis.

The Board’s new decision departs dramatically from previous decisions. Nonunion employees now may request the presence of a co-worker during a meeting with management if the employee reasonably believes discipline may result from the meeting. Just like employers of unionized workforces, nonunion employers have several possible ways to respond to the Board’s new position when conducting an investigatory meeting with an employee:

1.      If an employee reasonably believes that discipline may result from the meeting with management and requests the presence of a co-worker at the meeting, the employer must allow the co-worker to attend the meeting. The employee may select the co-worker of his or her choice, but the unavailability of the co-worker may not unduly delay the meeting.

2.      The employer may also opt to decline to have the meeting if the employee requests the presence of another co-worker and simply make any disciplinary decision based on the information available to the employer. The downside in taking this action is that the employer may make a decision based on incomplete information. Also, the decision to forego the meeting and simply issue discipline may be viewed as retaliation against the employee because the employee requested the presence of a co-worker at the meeting.

3.      If an employee does not have a reasonable belief that discipline could result      from the meeting with management, management may insist that the employee attend the meeting without the presence of a co-worker. As an example, if the purpose of the meeting is only to issue the discipline and not to gather any information, the employer need not permit an employee to have a co-worker accompany him to the meeting.

The potential penalty for an employer’s violation of an employee’s Weingarten right can be substantial. For example, in this recent case, the employer terminated an employee for refusing to attend a meeting with management because management would not permit another employee to attend the meeting with him. The basis for the termination was insubordination. The Board ruled that the employee was entitled to reinstatement and back pay.

The Board’s decision may change the way nonunion employers conduct investigations. Nonunion employers should note that the NLRB ruling does not require employers to suggest or automatically have a co-worker attend an investigatory meeting. The NLRB ruling merely addresses how an employer should respond to an employee’s request to have a co-worker present. Also, while the United States Court of Appeals can overrule the National Labor Relations Board, the Board decision is the law of the land until the decision is reversed or overruled.

Organizing Rights of Contingent or Temporary Employees

Many employers now use outside services to supplement their labor force. The General Accounting Office and the Bureau of Labor Statistics estimate that from 1982 to 1998, the number of jobs in the temporary help supply industry rose 577 percent while the number of jobs in the work force grew only by 41 percent. Previously, for the purposes of union organizing and representation issues, temporary workers supplied by a temporary employment agency could not be included in the same proposed bargaining unit as regular employees. The Board has reversed its position and now holds that temporary workers supplied by a temporary employment agency may have the right to be included in bargaining units that exist at employers where they are placed temporarily. Temporary workers are now able to try to organize the workforce alongside regular employees and can file a complaint with the NLRB if the temp thinks any reassignment or change in work conditions are in retaliation for the temp’s union activity. It is too early to determine the extent to which this decision may impact the use of temporary employees, but employers should be aware that temporary workers may be deemed the employer’s employee for the purpose of union representation and organizing issues. This decision hands organized labor a very important organizing tool as most employers exercise no judgment over the identity of the temporary workers brought in to a company’s workplace.

The inclusion of temporary employees with regular employees for the purpose of union organizing and representation issues is not automatic. Temporary employees will only be included alongside regular employees if the temps share enough similarities in the terms and conditions of employment. The less temps have in common with regular employees, the less likely the chance that the temps will be included. One way to minimize the risk of temps becoming your employee with regard to unionization issues is to rotate them out of your workforce more often.

If you have any questions regarding an employer’s rights and obligations when conducting investigatory meetings with either nonunion or union employees or you have questions regarding the use of contingent or temporary employees please call either Peter Bennett or Frederick Finberg.