Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On March 25, 2014, the National Labor Relations Board affirmed the Administrative Law Judge’s ruling that an employer violated various sections of the National Labor Relations Act by engaging in retaliatory acts against an employee for his conduct in representing a coworker at an investigatory interview, and by unilaterally adopting a requirement that employees certify the veracity of investigative interview notes. Murtis Taylor Human Services Systems, 360 NLRB No. 66 (Mar. 25, 2014).
In July 2011, the employer held a pre-disciplinary investigative interview of an employee for possible fraudulent Medicaid billing and timekeeping practices. A coworker, who served as a SEIU District 1199 delegate, attended the interview as the employee’s Weingarten representative. During the interview, the union steward repeatedly asked the employer to explain the purpose of the questioning, and the union steward advised the employee not to answer certain questions until the employer provided additional details. When the company representative asked the employee whether she worked for another employer, the union steward told her that what she did on her own time was “none of his business.” After the employee refused to answer, the employer placed her on a suspension, and she resigned.
Following this interview, the employer turned its investigation for Medicaid fraud onto the union steward. The employer also required him to provide documentation confirming his immigration status and automobile insurance, restricted his access to its facilities other than the one housing his workstation, and placed him on a 10-day suspension for obstruction of the July 2011 interview. The ALJ found these actions to be a violation of the Act, as they were deemed to be retaliation for the union steward’s protected Weingarten representation. The Board affirmed, finding that the union steward was within his rights in providing assistance and counsel to the employee being interrogated when he attempted to clarify the reasons for such interrogation and when he advised the employee not to answer certain questions.
In March 2012, the employer conducted an investigatory interview of another employee. Following the interview, the company representative reviewed the notes, made some changes, and printed them for the interviewee to sign. The line below the signature block at the bottom of each page read: “Refusal to acknowledge the veracity or to correct the statement in writing is equivalent to refusal to cooperate with the administrative hearing.” When the employee refused to sign the notes, the company representative collected his keys and badge. The Board affirmed that the company’s unilateral implementation of a requirement that employees sign notes of investigatory interviews to attest to their accuracy violated the Act.
This decision is important for employers because it clarifies the boundaries of acceptable conduct of union stewards during pre-disciplinary interviews under Weingarten, and confirms that employers may not require employees to verify the accuracy of interview notes without first bargaining with the union over this requirement as a term or condition of employment.