No NLRA Violation if Interviewing Supervisor Lacks Knowledge of Weingarten Request: NLRB | Practical Law

No NLRA Violation if Interviewing Supervisor Lacks Knowledge of Weingarten Request: NLRB | Practical Law

In United States Postal Service, the National Labor Relations Board (NLRB) reversed an NLRB Administrative Law Judge's (ALJ) finding that the employer violated Section 8(a)(1) of the National Labor Relations Act (NLRA) when a supervisor continued to question the plaintiff after he had previously asserted his right to union representation under NLRB v. J. Weingarten, Inc. in an initial interview with a different supervisor. The NLRB held that because the plaintiff's Weingarten rights were triggered after he invoked them to the first supervisor, he did not need to repeat his request. However, since the NLRB's General Counsel failed to show that the second supervisor had knowledge of the plaintiff's previous Weingarten request, and the supervisor stopped the interview once she learned of the request, the employer did not commit an unfair labor practice (ULP) in violation of the NLRA.

No NLRA Violation if Interviewing Supervisor Lacks Knowledge of Weingarten Request: NLRB

by Practical Law Labor & Employment
Published on 23 Apr 2014 • USA (National/Federal)
In United States Postal Service, the National Labor Relations Board (NLRB) reversed an NLRB Administrative Law Judge's (ALJ) finding that the employer violated Section 8(a)(1) of the National Labor Relations Act (NLRA) when a supervisor continued to question the plaintiff after he had previously asserted his right to union representation under NLRB v. J. Weingarten, Inc. in an initial interview with a different supervisor. The NLRB held that because the plaintiff's Weingarten rights were triggered after he invoked them to the first supervisor, he did not need to repeat his request. However, since the NLRB's General Counsel failed to show that the second supervisor had knowledge of the plaintiff's previous Weingarten request, and the supervisor stopped the interview once she learned of the request, the employer did not commit an unfair labor practice (ULP) in violation of the NLRA.
On April 22, 2014, in United States Postal Service, the panel (Board) heading the NLRB's judicial functions reversed an NLRB Administrative Law Judge's (ALJ) finding that the employer violated Section 8(a)(1) of the NLRA when a supervisor continued to question the plaintiff after he had asserted his right to union representation under NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975) in an initial interview with a different supervisor. The NLRB held that because the plaintiff's Weingarten rights were triggered after he invoked them to the first supervisor, he did not need to repeat his request. However, since the NLRB's General Counsel failed to show that the second supervisor had knowledge of the plaintiff's previous Weingarten request, and the supervisor stopped the interview once she learned of the request, the employer did not commit an unfair labor practice (ULP) in violation of the NLRA. (360 N.L.R.B. slip op. 79 (Apr. 22, 2014).)

Background

The plaintiff worked as a letter carrier in the employer's Albuquerque location. In February 2012, the plaintiff made a written request for leave, but mistakenly made the request for February when he intended to take leave in March. Nevertheless, his leave was approved.
In March, after the plaintiff informed his supervisor of his upcoming leave, the supervisor asked for a copy of the approved leave slip. In response, the plaintiff invoked his Weingarten rights to union representation, fearing that the interview would result in discipline due to the date discrepancy. The supervisor provided written assurance that their discussion would not lead to discipline, and the plaintiff agreed to show him the approved leave slip. The supervisor then requested to take the leave slip, but the plaintiff refused and left the room.
Shortly thereafter, a more senior supervisor asked the plaintiff if he had scheduled leave. The plaintiff informed her that he had, but that he was invoking his Weingarten rights. The second supervisor asked if he was serious, and once the plaintiff said he was, she left the room without further questioning.
The NLRB's General Counsel issued a ULP complaint against the employer alleging, among other violations, that it violated Section 8(a)(1) of the NLRA by continuing to question the plaintiff after he invoked his Weingarten rights. The ALJ agreed, finding that:
  • The questioning by the first supervisor led the plaintiff to reasonably believe that the discussion would result in discipline because of the date discrepancy on the leave slip.
  • The first supervisor's written assurance that their discussion would not result in discipline neutralized the plaintiff's concern.
  • The second supervisor's additional questions negated the plaintiff's belief that there would be no discipline, especially given her more senior position.
  • After the plaintiff first invoked his rights, the employer's obligations under Weingarten were triggered, requiring the employer to:
    • honor the plaintiff's earlier request for union representation;
    • give the plaintiff the option of going forward with the interview without union representation; or
    • stop the interview.
  • By continuing to question the plaintiff without complying with its Weingarten obligations, the employer committed a ULP in violation of Section 8(a)(1).
Both parties filed exceptions to the ALJ's order.

Outcome

The Board adopted the ALJ's findings for the other alleged violations, but reversed the ALJ's finding that the employer violated Section 8(a)(1) of the NLRA by continuing to question the plaintiff about his leave.
The Board found that:
  • Assuming the plaintiff had an objectively reasonable basis to fear discipline, his right to Weingarten representation was triggered when he first requested it.
  • Had the plaintiff's Weingarten request been communicated to the second supervisor, he would not have been required to repeat it because his rights had already been invoked.
  • There was no evidence that the second supervisor knew the plaintiff had previously made a Weingarten request to the first supervisor.
  • Unlike the circumstances in Amoco Oil Co., 278 N.L.R.B. 1 (1986), the Board could not infer that the second supervisor had knowledge of the plaintiff's request before he repeated it to her. Had the first supervisor been present for the second supervisor's interview, the Board could have drawn that inference, but the record was not clear whether the first supervisor was present in the second interview.
  • The second supervisor stopped the interview once the plaintiff repeated his Weingarten request to her.
Member Miscimarra also found that second supervisor's one question to the plaintiff, asking if he had scheduled leave, did not qualify as a further investigatory question and therefore could not have been a ULP because:
  • It was merely an introductory question.
  • The question did not elicit any information beyond what the plaintiff had already raised and discussed voluntarily with the first supervisor.
  • The plaintiff had freely discussed his leave with the first supervisor and only made his Weingarten request once the supervisor asked him for his leave slip.
The Board held that the employer did not commit a ULP because the record showed that the second supervisor:
  • Did not know that the plaintiff had previously invoked his rights under Weingarten.
  • Immediately stopped the interview once the plaintiff communicated his request for representation to her.

Practical Implications

This decision clarifies that the NLRB's General Counsel must prove that an investigating supervisor or manager had knowledge of an employee's request for union representation under Weingarten to successfully bring a Weingarten rights violation ULP claim against an employer. Additionally, although the Board could not infer that the second supervisor in United States Postal Service had knowledge of the previous request, the Board reaffirmed that when the supervisor to whom the request is first made is present during a subsequent interview, under Amoco it will infer that the second supervisor has knowledge of the request.