UNITED STATES
OFFICE OF PERSONNEL MANAGEMENT
WASHINGTON, D.C. 20415-2000

LABOR-MANAGEMENT RELATIONS ADVISORY #01-1

DATE           December 17, 2001

SUBJECT:    THE IMPLICATIONS OF THE NLRB'S DECISION
                       IN EPILEPSY FOUNDATION ON FEDERAL SECTOR
                       LABOR-MANAGEMENT RELATIONS

The decision of the National Labor Relations Board (the Board) in Epilepsy Foundation of Northeast Ohio, 331 NLRB 92, at 1 (July 10, 2000) (Epilepsy Foundation) provides that an employee in a non-unionized workplace has a right under section 7 of the National Labor Relations Act (NLRA) to have a co-worker present at an investigatory interview that the employee believes may result in disciplinary action. This constitutes broadening of the so-called "Weingarten right."

In NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975) (Weingarten), the Supreme Court held that the Board's determination that section 7 "creates a statutory right in an employee to refuse to submit without union representation to an interview which he reasonably fears may result in his discipline" was "at least permissible under" the Act. Weingarten, 420 U.S. at 256, 266-67. Also, the Court acknowledged that "[i]t is the province of the NLRB, not the courts, to determine whether or not the 'need' [for a Weingarten-type rule] exists in light of changing industrial practices and the NLRB's cumulative experience in dealing with labor-management relations." Weingarten, 420 U.S. at 266. The Court did not address whether the same rule would apply to a non-unionized workplace.

In 1982, in Materials Research Corp., 262 NLRB 1010 (1982) (Materials Research, the Board extended the Weingarten right to cover employees in nonunion workplaces, holding that such employees have a right to request the presence of a co-worker in an investigatory interview which the employee reasonably believes could result in disciplinary action. The Board reversed itself in Sears, Roebuck & Co., 274 NLRB 230 (1985) (Sears), holding that Weingarten principles do not apply in circumstances where there is no certified or recognized union. Three years later, in E.I. DuPont de Nemours, 289 NLRB 627, 628 (1988) (DuPont), the Board adhered to the rule enunciated in Sears, but acknowledged that "the statute might be amenable to other interpretations." In Epilepsy Foundation, the Board has come full circle, reviving the holding of Materials Research.

Central to all of the cases mentioned above is section 7 of the NLRA, which establishes the rights of private sector employees and provides that:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title.

29 U.S.C. 157 (emphasis added). Both union and nonunion employees fall under the protections of section 7 of the NLRA. See NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962).

Moreover, the critical component of section 7 in each case was the "to engage in other concerted activities for the purpose of ... mutual aid and protection" clause. As the Board notes in Epilepsy Foundation:

[We were] correct in Materials Research to attach much significance to the fact that the Court's Weingarten decision found that the right was grounded in the language of Section 7 of the Act, specifically the right to engage in 'concerted activities for the purpose of mutual aid or protection.' This rationale is equally applicable in circumstances where employees are not represented by a union, for in these circumstances the right to have a coworker present at an investigatory interview also greatly enhances the employees' opportunities to act in concert to address their concern 'that the employer does not initiate or continue a practice of imposing punishment unjustly.' Thus, affording Weingarten rights to employees in these circumstances effectuates the policy that 'Section 7 rights are enjoyed by all employees and are in no [way] dependent on union representation for their implementation.' Glomac Plastics, Inc., 234 NLRB 1309, 1311 (1978).

331 NLRB 92, at 3 (footnote omitted).

The D.C. Circuit, in upholding the Board's decision, in pertinent part, stated that "[t]he NLRB's determination that an employee's request for a coworker's presence at an investigatory interview is concerted action for mutual aid and protection and thus within the realm of 7 is therefore reasonable." Epilepsy Foundation, 268 F.3d 1095 (D.C. Cir., Nov. 2, 2001). Elaborating, the court asserted that:

[i]t follows, therefore, that if 'hav[ing] a coworker present at an investigatory interview which the employee reasonably believes might result in disciplinary action,' is concerted action for mutual aid or protection, then the Board's decision rests on a permissible construction of the statute. In a unionized workplace, an employee's request for union representation during an investigatory interview is undoubtedly concerted activity for mutual aid and protection In other words, the presence of a coworker gives an employee a potential witness, advisor, and advocate in an adversarial situation, and, ideally, militates against the imposition of unjust discipline by the employer. The Board's position also recognizes that even nonunion employees may have a shared interest in preventing the imposition of unjust punishment, and an employee's assertion of Weingarten invokes this shared interest.

While the Board has reversed its position, yet again, on the breadth of the Weingarten rule, it will not impact Federal sector labor-management relations. Unlike the private sector, the Federal Service Labor-Management Relations Statute, 5 U.S.C. 7101, et seq. (the Statute), does not contain the "other concerted activities for the purpose of ... mutual aid or protection" clause. Instead, it states that:

Each employee shall have the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right. Except as otherwise provided under this chapter, such right includes the right -

1. to act for a labor organization in the capacity of a representative and the right, in that capacity, to present the views of the labor organization to heads of agencies and other officials of the executive branch of the Government, the Congress, or other appropriate authorities, and
   
2. to engage in collective bargaining with respect to conditions of employment through representatives chosen by employees under this chapter.

5 U.S.C. 7102. Considering the absence of the &qout;other concerted activity" language, employee activities protected under section 7102 are somewhat limited in comparison to those protected by section 7 of the NLRA. Since the Board's position regarding employees in a non-unionized workplace rests solely on the clause in section 7 of NLRA, which is not contained, even analogously, in the Statute, there is no statutory basis for the Federal Labor Relations Authority (the Authority) to adopt the Board's renewed expansive interpretation of Weingarten.

Furthermore, in the Federal sector it is clear from section 7114(a)(2)(B) of the Statute that "the investigatory examination right applies only to employees in a bargaining unit." FLRA General Counsel Memorandum To Regional Directors On Meetings Under The Federal Service Labor-Management Relations Statute (Jan. 25, 2001). That section states that:

An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at -

(B) any examination of an employee in the unit by a representative of the agency in connection with an investigation if -

(i) the employee reasonably believes that the examination may result in disciplinary action against the employee; and
(ii) the employee requests representation.

(emphasis added). In essence, section 7114(a)(2)(B) requires that where a bargaining unit employee satisfies elements (i) and (ii), the union must be afforded an opportunity to be present.

This represents a distinction in the evolution of the right to representation in the private and Federal sectors. In the private sector, the right to have a union representative or a co-worker present during an investigatory interview resides with the employee. However, in the Federal sector this right has not been given to the employee; rather, the exclusive representative of the bargaining unit was granted the right to be present at the employee's request.

Moreover, the legislative history of the Statute illustrates that Congress anticipated this distinction. In particular, the conferees stated in the Conference Committee Report accompanying the Statute that they "recognize that the right to representation in examinations may evolve differently in the private and Federal sectors." House of Rep. Conf. Report. 95-1717, 156, 1978 U.S.C.C.A.N. 2860, 2890. In so noting, the conferees stated that they "specifically intend that future court decisions interpreting the right in the private sector will not necessarily be determinative for the Federal sector." Id.

In summary, the absence of the operative language from section 7 of the NLRA in the Statute, the unmistakable inclusion of the terms "exclusive representative" and "unit" in section 7114(a)(2)(B), and the legislative history of the Statute combine to establish that non-bargaining unit Federal employees do not have the right to the presence of a union representative or co-worker during an investigatory examination. Therefore, the Authority has no basis to follow the Board's decision in Epilepsy Foundation.

Page created on 31 December 2001