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Fourth Circuit Holds Employees Can Select a Specific Weingarten Representative

The National Labor Relations Board and the courts have long held that an employee represented by a union has a right to have a union representative at an investigatory interview which the employee reasonably believes may lead to disciplinary action. This rule was set by the Supreme Court in 1975 in NLRB v. J. Weingarten, Inc.

In August, in a 2-1 decision, the U.S. Court of Appeals for the Fourth Circuit (which includes Maryland) extended Weingarten when it ruled that it may be an unfair labor practice for an employer to refuse to allow an employee to designate a specific union representative to attend an investigatory interview. The majority’s decision holds that an employee has the right to select a specific union representative provided the requested representative is available and the employee’s request is reasonable under the circumstances. Anheuser-Busch, Inc. v. NLRB.

This principle may also apply to non-union employees. In 2000, the NLRB reversed a long line of cases and extended Weingarten rights to non-union workers, holding that such employees have the right to be accompanied by a co-worker at investigatory interviews. The composition of the NLRB has changed and new NLRB members have indicated that they are inclined to overrule this decision if the issue comes before them. Accordingly, this area of the law remains unsettled.

Other Weingarten-related issues are far more clear. The law continues to provide that after an employee makes a valid request for a representative to attend the meeting with him, an employer has two alternatives to granting the request; it can either (1) dispense with the interview or (2) offer the employee the choice between having the interview without his requested representative or having no interview in which case the employer will render its decision based on the information otherwise available to it. Also, the NLRB and courts hold that back pay and reinstatement are not appropriate remedies for a Weingarten violation where the employee was disciplined for good cause, unless the discipline was the direct result of the employee’s assertion of his rights under Weingarten.