Proper Focus of Weingarten Analysis Was Employee's PIP and Counseling, Not Supervisor's Subjective Intentions: NLRB | Practical Law

Proper Focus of Weingarten Analysis Was Employee's PIP and Counseling, Not Supervisor's Subjective Intentions: NLRB | Practical Law

In Verizon California, Inc., the National Labor Relations Board (NLRB) declined to defer to an arbitration award when the arbitrator focused on the supervisor's subjective intentions rather than the employee's performance improvement plan (PIP) and recent counseling in determining whether the employee was entitled to Weingarten representation.

Proper Focus of Weingarten Analysis Was Employee's PIP and Counseling, Not Supervisor's Subjective Intentions: NLRB

by Practical Law Labor & Employment
Published on 24 Aug 2016 • USA (National/Federal)
In Verizon California, Inc., the National Labor Relations Board (NLRB) declined to defer to an arbitration award when the arbitrator focused on the supervisor's subjective intentions rather than the employee's performance improvement plan (PIP) and recent counseling in determining whether the employee was entitled to Weingarten representation.
On August 19, 2016, in Verizon California, Inc., the NLRB held that deferral to an arbitration award was inappropriate under Spielberg Mfg. Co. (112 N.L.R.B. 1080 (1955)) and Olin Corp. (268 N.L.R.B. 573 (1984)). The panel (Board) heading the NLRB's judicial functions stated that the proper focus of a Weingarten analysis is objective evidence regarding the employee's reasonable belief that the interview would lead to discipline, in this case the employee's performance improvement plan (PIP) and prior warnings from the supervisor, rather than the supervisor's subjective intentions when speaking with the employee. (364 N.L.R.B. No. 79 (Aug. 19, 2016).)

Background

Employee Bryan Rodriguez's job was to install and repair customer communications equipment. His employer Verizon's work rules required employees to call their supervisor if a job took longer than 1.8 hours to complete. On June 2, 2010, Verizon placed Rodriguez on a PIP, which reiterated the requirement that Rodriguez must call his supervisor during any long-duration job. After the PIP was in place, Rodriguez's supervisor, Brenda Cooper, warned Rodriguez that he would be subject to discipline if he did not call in during a long-duration job.
On June 8, 2010, Rodriguez worked on a long-duration job without calling his supervisor. Cooper called Rodriguez the next day and asked him to explain two stops that he had made on the way to the long-duration job. Cooper explained that she needed the information to fill out a required report. Cooper did not tell Rodriguez that the interview would not lead to discipline.
Rodriguez stated that he felt uncomfortable discussing the matter without a union representative, but Cooper did not permit a union representative to be present or participate in the conversation. When Rodriguez refused to answer her questions as a result, Cooper suspended him for insubordination.
The union filed an unfair labor practice (ULP) charge alleging that the employer unlawfully denied Rodriguez his Weingarten right to union representation (NLRB v. J. Weingarten, Inc., 420 U.S. 251, 256-57 (1975); see also Practice Note, Investigative Interviews in a Unionized Workplace: Weingarten Rights). The Regional Director deferred processing the charge pending arbitration. The arbitrator held that Rodriguez was not entitled to union representation because his expectation that he might be disciplined was unreasonable. The arbitrator focused on the supervisor's subjective intention when questioning Rodriguez, which she claimed was to obtain information necessary to complete a required report.
The Regional Director then issued a complaint alleging that the arbitration award was "repugnant to the [National Labor Relations] Act." An administrative law judge (ALJ) upheld the arbitration award because it was "susceptible of an interpretation consistent with the Act." The General Counsel and the union appealed the ALJ's decision to the Board.

Outcome

The Board found that:
  • The arbitrator's finding that Rodriguez was not entitled to Weingarten representation because his fear of discipline was not reasonable was "palpably wrong."
  • Deferral to the arbitration award was not appropriate.
The Board explained that deferral is appropriate under Spielberg/Olin when:
  • The proceedings appear to have been fair and regular.
  • All parties have agreed to be bound by the award.
  • The arbitrator considered the ULP issue that is before the Board.
  • The decision of the arbitrator is not clearly repugnant to the purposes and policies of the NLRA.
The Board further explained that an arbitrator's award is not repugnant merely because the award is not totally consistent with Board precedent. An award is repugnant, however, if it is "palpably wrong" or not susceptible to an interpretation consistent with the NLRA (Olin, 268 N.L.R.B. at 574).
Because the parties agreed that the first three Spielberg/Olin factors were met, the case turned on whether the arbitrator's award was repugnant to the NLRA. The Board found that deferral to the arbitration award was inappropriate because it could not be reconciled with Weingarten and was, therefore, "palpably wrong." In so holding, the Board noted that:
  • The proper focus of a Weingarten analysis is objective evidence, which in this case included:
    • the PIP;
    • prior counseling (which warned that further work rule violations would result in discipline); and
    • Cooper's failure to inform Rodriguez that the interview would not lead to discipline.
  • Rodriguez's belief that discipline might result from the interview was reasonable under all the circumstances.
  • The arbitrator misapplied Weingarten by focusing on the supervisor's subjective intentions rather than the point of view of a reasonable employee.

Practical Implications

Employers must be sure to consider the viewpoint of the employee when responding to a request for union representation during an interview or meeting, even if the employer does not intend to discipline the employee. If the interview is not going to lead to discipline, the employer should inform the employee of this. For more information on how to respond to Weingarten requests, see Practice Note, Investigative Interviews in a Union Workplace: Options for Employers Responding to Valid Requests for a Weingarten Representative.