The National Labor Relations Board has long recognized Weingarten rights—the right to request assistance from union representatives during investigatory interviews by employers. Historically, the Board has limited the types of individuals that can serve in this union representative role to union officers that are not legal professionals.  However, in the Board’s recent decision in Pacific Architects and Engineers Incorporated (“PAE”), the Board loosened this restriction and, for the first time, allowed “a union attorney” to act as an employee’s union representative.

Despite this pro-employee result on the union representative issue, the PAE decision also included an employer-friendly determination. Specifically, the Board reversed the ALJ’s finding that the employer violated the National Labor Relations Act (the “Act”) where the employer’s investigator limited union representatives’ participation during an investigatory interview.  The Board found that although a union representative may not be required to “sit silently like a mere observer,” having some limitations on the representative’s speaking during portions of the interview is still consistent with the principles delineated in Weingarten.

Factual Background

In PAE, an employee serving as union president learned about the suspension of fellow employees and confronted one of the decision makers on the suspensions, questioning his authority to make the suspension decision. Offended by the employee’s “insubordinate” action, the decision maker filed a complaint with the employer and which suggested that some type of action should be taken against the employee.  During the investigation of the complaint, the complained-of employee repeatedly informed the employer that the union attorney was available and ready to act as his union representative.  However, the employer responded that because it was a disciplinary matter, the union attorney was not an “appropriate” union representative, and the employer told the employee to choose from a list of acceptable representatives comprised of union officers).  The employee begrudgingly agreed and attended an investigatory meeting with two union officers as his representatives.

To maintain order during the meeting, because seven people were trying to talk at the same time, the investigator led the meeting as follows:

• The investigator instructed everyone to stop talking and insisted that all questions must come through him, as he was running the inquiry.
• Then, the investigator instructed the employee to prepare a written statement about the underlying confrontation with the decision maker and did not allow the representatives to ask any questions at that time.
• After the employee provided his written statement, a break in the meeting was held, and the employee was permitted to consult with his union representatives.
• The investigator then conducted a question-and-answer session, wherein the investigator read written questions aloud to the employee, the employee wrote down answers, and the investigator then read the answers aloud. The union representatives were not permitted to participate during this portion of the meeting.
• Following the aforementioned question-and-answer session, the union representatives were permitted to ask questions.

The Board’s Decision

The Board found the employer’s refusal to allow the union attorney to attend the investigation meeting to be a violation of the employee’s Weingarten rights.  Although the employee was not completely deprived of his right to representation – he had two union officers present – the Board agreed with the ALJ that, for purposes of Weingarten, the union attorney could serve as a union representative because the attorney was designated by the union as the employee’s representative and was, in fact, an agent of the union.  Although the Board did not expressly reiterate the ALJ’s rationale on this point, it is worth noting that the ALJ had emphasized that Weingarten provides a right to a representative that is an agent of the labor organization and generally provides a right to choose the specific union representative, if that representative is available.

Regarding the investigator’s ability to control the meeting, however, the Board sided with the employer. Specifically, the Board found that the investigator’s instructions were consistent with Weingarten principles:  i.e., although a representative is to participate and assist the employee during an investigatory interview, an “employer [] is free to insist that he is only interested [] in hearing the employee’s own account of the matter under investigation.”

The Board went on to distinguish its decision here from the Lockheed Martin Astronautics decision, wherein the employer was found to have violated the Act by telling a union representative to “shut up” at the start of a three-person meeting.  The Board noted that, in contrast to Lockheed Martin, it was finding no violation of the Act in PAE because: (1) the investigator told “everyone,” not just the union representatives, to stop talking in the meeting, which had seven “unruly” participants; (2) he gave such instruction precisely when he sought to elicit the employee’s written statement about the confrontation, which was “the entire point of the interview”; (3) he allowed the employee to consult with his union representatives; and (4) he permitted the representatives to ask questions after the investigator completed the question-and-answer session.

Finally, it is worth noting that the Board also reversed the ALJ’s finding that the investigatory interview was coercive in that it questioned the employee’s protected union activity (the confrontation of the decision maker). Recognizing the employer’s legitimate interest in investigating the issue, the Board found that the investigation was “reasonably tailored” and “clearly related to” the employer’s ability to effectively operate its business, and thus not a violation of the Act.

Takeaway

The Board’s decision in PAE provides employers with important insights as to how they should conduct investigatory meetings.  In sum: (1) employers cannot refuse to allow union attorneys to serve as the “union representative”; (2)employers maintain some control over the flow and structure of investigation meetings, including related to when the union representatives may speak; and (3) investigation interviews do not necessarily violate the NLRA when employers’ questions relate to the employees’ protected union activities, so long as such investigation is reasonably tailored to the employers’ legitimate business interests.