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NLRB Expands Scope of Union Representatives’ Permissible Conduct

In a 2-to-1 decision, a three-member panel of the National Labor Relations Board has held it was unlawful for an employer to threaten a union steward with suspension for showing an employee, during the employer’s investigative interview about a violation of company procedure, the steward’s answer to a question asked by the interviewer, which was written in the steward’s notebook, so that the employee could read it to the interviewer. The assistance provided by the steward here was consistent with the U.S. Supreme Court’s decision in NLRB v. J. Weingarten, 420 U.S. 251 (1975), the National Labor Relations Board has held. Howard Industries, Inc., 362 NLRB No. 35 (Mar. 23, 2015).

The employer’s HR Generalist was questioning the employee about the violation of procedure when the steward raised a notebook in front of the employee and drew the employee’s attention to a section of the notebook which related to the interviewer’s question. The section contained his transcript of the employee’s statement to the steward in which the employee had asserted he lacked training in the procedure.

As the employee began to read what was written in the notebook, the interviewer directed the steward to close the notebook. The steward refused, stating it was being used “as a tool” to represent the employee. The interviewer then told the steward to “get the notebook out of there before I suspend you.” The steward complied.

The NLRB concluded the employer had violated the NLRA by threatening to suspend the steward. Under Weingarten, a union-represented employee may request the presence of a union representative at an investigatory interview the employee reasonably believes may result in disciplinary action. If a representative participating in the interview is acting within the ambit of Weingarten, providing proper assistance, the representative’s activity is protected under the NLRA. However, the precise role of union representatives in investigatory interviews under Weingarten is not well-defined and has been the subject of several NLRB decisions.

In Howard Industries, the Board majority concluded the steward could use the notebook to “remind[] [the employee] of his lack-of-training defense.”   The NLRB held the steward’s conduct was protected under the NLRA and the interviewer’s threat of suspension was unlawful.

In a dissenting opinion, Member Philip Miscimarra – quoting from the NLRB’s brief in Weingarten – said that while a union representative may provide assistance during an investigatory interview, the employer “is free to insist that he is only interested, at that time, in hearing the employee’s own account of the matter under investigation.” As the steward did not explain the purpose of the notebook, Member Miscimarra said it reasonably appeared to the interviewer that the employee was reading from a script.

While the Board’s decision does not go so far as to permit union representatives to script employee answers during investigatory interviews, employers need to proceed with caution. Interviewers should specifically state that responses should be in the employee’s own words and that a scripted response will not be accepted. Also, if the steward wishes to remind the employee, orally or in writing, of additional facts or explanations, he may do so, but the steward does not have to be permitted to answer the question for the employee. Of course, the employee’s failure to mention a significant defense to his actions until he is prompted by the steward likely will have a negative effect on his credibility in the eyes of the employer.

 

Jackson Lewis P.C. © 2020National Law Review, Volume V, Number 86

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Matthew D. Freeman, Jackson Lewis, Boston, absence issues lawyer, wage hour litigation attorney
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Matthew D. Freeman is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He routinely advises clients regarding compliance with state and federal labor and employment laws, including those related to employee discipline and discharge, disability management and leave of absence issues, wage and hour issues, and reductions in force.

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Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law
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Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

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Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney
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