The National Labor Relations Board (“NLRB”) issued a decision this year that serves as a reminder to employers about their responsibilities when an employee requests union representation during an investigatory interview (referred to as “Weingarten rights”). See YRC Inc., d/b/a YRC Freight, 360 NLRB No. 90 (April 30, 2014). In YRC Freight, the NLRB reiterated that an employer does not violate an employee’s Weingarten rights or rights under the National Labor Relations Act (the “Act”) when it discontinues an interview following an employee’s request for a union representative even if the employer subsequently disciplines the employee in part due to an employee’s lack of explanation for his behavior.
The employer operated a trucking company. The employee who filed the charges with the NLRB, Fred Rose (“Rose”), worked as a truck driver. Rose was scheduled to depart from work in his truck between 6:30 and 6:45 a.m. On August 2, 2012, Rose’s supervisor saw Rose pull out of the truck yard over an hour late. The supervisor testified he had not decided whether to issue discipline at that time.
The supervisor later approached Rose and asked why the he left over an hour after the start of his scheduled departure time. Rose asked whether the supervisor’s question was investigatory. The supervisor replied that he was just asking Rose a question. Rose responded that if the question was investigatory, he would like to have a union representative present. There were no union stewards present, so the supervisor told Rose he could have a coworker serve as a representative (which was authorized under the parties’ collective-bargaining agreement). Rose responded that he didn’t know who was working that day and requested a list of coworkers who were at work.
The supervisor replied that Rose would be receiving discipline for misuse of company time. Six days later, the supervisor mailed Rose a warning letter memorializing the discipline. The letter communicated that Rose was being disciplined because the supervisor “asked you [Rose] what were your delays. You could offer no valid reason as to why you were delayed.” Rose filed charges with the NLRB and the General Counsel issued a complaint.
The General Counsel asserted that the employer violated the Act in two ways. First, the General Counsel claimed that the employer violated the Act by denying’s Rose’s request to participate in an investigative interview with a Weingarten representative. Second, the General Counsel claimed the employer violated the Act by issuing a warning letter in retaliation for Rose’s Weingarten request. At the hearing, Administrative Law Judge Arthur Amchan dismissed both claims.
The NLRB adopted the Administrative Law Judge’s finding that the employer did not violate the Act by denying the employee’s request for a Weingarten representative and then discontinuing the interview. Two of the three members of the NLRB panel also affirmed the Administrative Law Judge’s finding that the employer did not violate the Act in subsequently issuing discipline. The lone dissenting member found that the employer’s issuance of discipline was motivated by the employee’s request for a Weingarten representative.
The Board reasoned that the employer did not violate the Act by electing to discontinue the investigatory interview after Rose invoked his Weingarten rights because Weingarten “expressly provides that, when an employee requests Weingarten representation, the employer may choose not to move forward with the interview.” By requesting representation for an investigatory interview, Rose risked not being able to participate in the interview and relinquished any benefit associated with explaining his behavior. An employee is not entitled to an investigatory interview to explain his behavior under Weingarten.
The Board majority further reasoned that there was no retaliation against Rose for requesting a Weingarten representative because the employer’s rationale for the discipline was credible. The supervisor’s credible testimony demonstrated that he disciplined Rose for misusing company time, not because of any hostility towards Rose for requesting Weingarten representation. Weingarten “gives employees a right to union representation during investigative interviews, but it does not afford immunity for unexplained conduct.”
The Board majority rejected the General Counsel’s argument that the timing of Rose’s discipline revealed the employer’s alleged retaliatory motive. The General Counsel pointed to the fact that Rose’s supervisor testified he had not decided to discipline Rose when he saw Rose depart from the truck yard late, but suddenly announced discipline immediately after Rose invoked his Weingarten rights. The Board majority observed that just because “Rose was disciplined after he invoked his Weingarten rights, it does not follow that he was disciplined because he invoked those rights.” Moreover, the fact that the disciplinary letter provides that the discipline was, in part, based on Rose’s inability to offer a “valid reason,” this does not indicate that the discipline was because Rose refused to be interviewed without union representation. There was simply no other evidence besides the timing of the discipline that the employer exhibited any hostility towards Rose’s request for Weingarten representation. Timing was not enough to prove retaliation in this instance.
The YRC Freight decision includes some important takeaways for employers. First, once an employee requests union representation for an investigatory interview the employer can either: (1) grant the employee’s request and conduct the interview with a union representative, or (2) cease the interview and make a disciplinary decision based on the information available. Second, an employee is not entitled to an investigatory interview. The employee is only entitled to union representation in an investigatory interview if the employee requests representation and if the employer decides to continue with the interview. Third, just because an employee requests union representation, this does not immunize him from lawful discipline. By requesting union representation, the employee risks foregoing any benefit to explaining his behavior that may be cause for discipline. At least in this case, the Board was unwilling to expand employee Weingarten rights to include the right to be interviewed or otherwise be immune from discipline for unexplained conduct. A link to the Board’s decision is here.
Margaret M. Davis is a Washington licensed attorney representing Management in labor and employment. For more information contact Margaret at firstname.lastname@example.org, or (206) 447-0182.