Section 8(a)(1) of the National Labor Relations Act (NLRA) makes it illegal for an employer to interfere with or restrain employees from exercising the rights accorded to them under that Act. In NLRB v. J. Weingarten, 420 U.S. 251 (1975), the U.S. Supreme Court held that the NLRA “guarantees an employee’s right to the presence of a union representative at an investigatory interview in which the risk of discipline reasonably inheres.” The protections that resulted from that holding typically are referred to as “Weingarten rights.” On July 25, 2012, the National Labor Relations Board (NLRB) upheld an Administrative Law Judge’s decision that an employer violated an employee’s Weingarten rights when managers ignored the employee’s request to have a union representative present when a meeting — originally scheduled to impose a verbal warning for prior actions — became a discussion of the employee’s general behavior and interaction with his supervisor. That issue was one of many addressed by the NLRB in an appeal in which the remaining issues were dismissed or found not to have been a violation of the NLRA. General Die Casters, Inc., 358 N.L.R.B. No. 84 (7/25/12).

Jerome Ivery, an employee of General Die Casters (GDC), is a member of the International Brotherhood of Teamsters Local 24, and was one of the union’s earliest supporters. On October 28, 2010, the union filed a charge against GDC, which it then amended on a number of occasions to include various actions by GDC which, it alleged, were in violation of the NLRA. One of the amendments referred to a meeting between Ivery and two senior managers that took place on November 1, 2010.

At that meeting, Ivery was presented with a disciplinary notice related to a number of misstatements on his timecards, for which he was receiving a verbal warning. According to the NLRB’s Acting General Counsel, after that discipline was discussed, the managers began an “investigatory interview” of other issues related to Ivery’s relationship with his supervisor. Ivery was asked a number of questions about recent complaints to his supervisor (“. . . why are you always questioning what you’re doing at that given time as if we are doing it to single you out?”). At that point, Ivery asked whether he needed “to get somebody else in here,” and was told that it would not be necessary. As the discussion continued, GDC’s plant manager made a number of references to Ivery’s disciplinary “trouble in the past,” prompting Ivery to again ask whether he needed “somebody” to attend the meeting. That second request was simply disregarded, and the session ended without further discipline being imposed against Ivery.

In its review of the ALJ’s decision, the NLRB first addressed the issue of whether Ivery’s question regarding whether he “needed to get somebody else n here” was sufficient to act as a request for union representation, and determined that it was. It then addressed whether Ivery had the requisite “reasonable belief” that the discussion could lead to discipline.

In past cases, the NLRB has found a right to Weingarten representation based on a reasonable belief of possible discipline when an employer has interviewed an employee with a history of work performance issues and conflicts with supervisors. In this case, the NLRB decided that because Ivery had “some history of work performance issues” and had previous conflicts with his supervisor, a denial of union representation violated Section 8 of the NLRA.

In its detailed opinion, the NLRB provided two clues to employers who would prefer to avoid liability on this issue. First, the Board specifically pointed out that the managers “never indicated to Ivery that no discipline was being considered.” This lack led directly to the Board’s determination that the meeting was, in fact, investigatory in nature, and that Ivery’s fear of impending additional discipline was reasonable. Second, in its review of a case offered by GDC to support the company’s position, the NLRB pointed out that the proffered case could be differentiated because in that situation, “no questions were asked of anyone,” and that, therefore, the meeting in that case could not have been perceived as investigatory. While these two issues, by themselves, may not create a successful defense by an employer against an NLRB charge, they are tips that may assist in avoiding liability under circumstances in which a disciplinary meeting branches out to include discussion of other performance-related issues.

Another point of interest is that the penalty for the violation found in this matter is a requirement to post, for 60 consecutive days, a notice that includes language informing employees of their unionization rights and of an employer’s obligations under the NLRA. The required Notice, written by the NLRB and attached to the opinion in this matter, follows the form and function of a rule that was proposed by the NLRB in 2010, and which would have required most U.S private-sector employers — including most of the 6 million small business in the U.S. — to post a written notice of employee rights regarding unionization. The regulation was proposed in 2010 and was set to become effective in November of 2011. The effective date was postponed to January 31, 2012, and then further postponed until April 30, 2012. At that point, the DC Circuit Court of Appeals enjoined the NLRB’s rule requiring the notice posting, which cannot take effect until the legal issues are resolved. There is no new deadline for the posting requirement at this time. However, based on the NLRB’s decision in this matter, GDC must post that notice. Employers should recognize that the rationale in this decision is a legitimate vehicle for the NLRB to impose a requirement that, at this point, has not been universally imposed upon employers through legislation.