Ignoring Weingarten Right and Discriminating Against Union Employees Violates NLRA

​An employer violated an employee's Weingarten right to have a union representative present during questioning about a workplace safety incident, the U.S. Court of Appeals for the District of Columbia Circuit ruled, despite the employer's argument that the right did not apply because it had already made the decision to discipline the employee.

The decision came in an appeal by the employer for review of National Labor Relations Board (NLRB) determinations that the employer had engaged in numerous unfair labor practices during several incidents.

In the safety incident, a union-covered employee had moved an item into a paint booth on a forklift and proceeded to paint with the forklift still in the booth. The operations director notified the employee of the safety violation, and two days later the plant manager called the employee into the office to question him about the incident. The employee asked for a union representative to be present during questioning, but the plant manager refused the request, saying the company only wanted to ask some questions about the incident.

When the employee arrived, an HR professional presented him a disciplinary document for a three-day suspension. The document included the employer's description of the incident with check boxes to indicate whether the employee agreed with the description and space for comments. The employee was instructed to sign the document and add his comments. The employee checked the box indicating disagreement but refused to leave comments or sign the document.

The NLRB ruled that the employer had violated the National Labor Relations Act (NLRA) by refusing the employee's request for a union representative during an investigative disciplinary interview. Such representation is guaranteed in a unionized workforce under the Supreme Court's ruling in NLRB v. Weingarten.

The employer argued that Weingarten did not apply in this case because it had already made the decision to discipline the employee and intended only to inform him of the decision. The court disagreed, noting that under NLRB precedent, the right to union representation reattaches when an employer informs an employee of disciplinary action and then seeks facts or evidence in support of that action or asks the employee to admit to the wrongdoing by signing a statement. Because the employer had invited the employee to respond to the assessment after presenting the discipline, the court ruled, the exception to Weingarten does not apply.

In another incident, while bargaining with the union, the employer temporarily laid off 10 union-covered employees. Prior to the layoffs, the plant manager had made threatening remarks toward pro-union employees, saying that union supporters would be laid off. The manager also created the impression that union supporters were under surveillance. These actions violate prohibitions against interfering with or coercing employees in the exercise of their NLRA rights.

When it brought the laid-off employees back to work, the employer assigned one of the employees, a highly skilled welder and a member of the union's bargaining team to low-skilled saw work for over four months despite assigning others, even a temporary worker, welding work. The employer also denied the employee's multiple requests for overtime while granting it to many others. The NLRB found that the employer's actions were motivated by anti-union animus.

Another incident centered on the employer's annual performance reviews and pay increases. Under past practice, all employees' reviews and wage increases were done in the same time frame. However, after the union was certified, the employer failed to provide reviews or raises for union employees until almost six months after nonunion employees had received theirs. The NLRB determined that delaying performance reviews and denying pay increases for six months discriminated against the union employees in the terms and conditions of their employment because of their union activity.    

Wendt Corp. v. NLRB, D.C. Cir., Nos. 20-1319, 20-1328 (March 1, 2022).

Robert S. Teachout, SHRM-SCP, works in the Washington D.C. area and is a legal editor for Brightmine™ HR & Compliance Centre, a service helping HR build successful and purposeful workplaces.