The Florida Bar

Florida Bar Journal

National Labor Relations Board: Nonunionized Employees Have a Right to Bring a Coworker to Discipli

November, 2000 Labor And Employment Law

S ince the U.S. Supreme Court’s 1975 decision in N.L.R.B. v. Weingarten, 420 U.S. 251 (1975), employees in unionized companies have had the right to have a union representative sit in on investigatory interviews and meetings that the employees reasonably believe might result in discipline against them. On July 10, however, the board issued a controversial 3-2 decision that affords nonunion workers the right to have a coworker of their choice sit in on meetings that have the potential to result in disciplinary action. The case— Epilepsy Foundation of Northeast Ohio, 331 N.L.R.B. 92 (2000)—not only represents a significant departure from prior board precedent, but it also marks the first time in almost 15 years that so-called Weingarten rights have been extended beyond the union setting.

Case Background

The facts giving rise to the board’s about-face are fairly straightforward. Arnis Borgs and Ashraful Hasan, two Epilepsy Foundation specialists, claimed the foundation committed an unfair labor practice by discharging them for engaging in concerted activity protected by the National Labor Relations Act. Specifically, the employees claimed that after they sent a memorandum to management critical of their supervisor’s involvement in a project, each of them was asked to meet with the supervisor and a higher-level manager face-to-face. Hasan agreed to meet with management alone, but Borgs claimed he was intimidated by the prospect of meeting with the managers by himself and requested that Hasan be allowed to attend the meeting with him. The managers refused this request, and Borgs continued to express opposition to the meeting. The next day, Borgs was terminated for refusing to meet with the managers, conduct that the managers claimed amounted to gross insubordination. A little over a month later, Hasan was also terminated in part because of his alleged refusal to accept supervision.

The Board’s Decision

The board ordered both employees reinstated with back pay. Because Hasan did not request to have a coworker present during his meeting with management, the board did not fault the foundation for asking to meet with him privately to discuss the memorandum he had coauthored. Nonetheless, the board did find that Hasan’s termination a month later was motivated by his participation in activity protected by the National Labor Relations Act. Specifically, the board thought the foundation terminated Hasan, at least in part, for assisting Borgs with writing a letter complaining about problems they were having with their supervisor and making repeated complaints about personnel actions that the foundation had taken against him and Borgs.

More significantly, though, the board found that Borgs had also engaged in protected concerted activity by requesting to have a coworker attend his meeting with management. Departing from prior precedent, the board held that the Epilepsy Foundation violated the National Labor Relations Act by refusing to grant Borgs’ request and by subsequently terminating Borgs because of his refusal to meet with management one-on-one.

In so holding, the three-member majority rejected several criticisms of their opinion offered by the two dissenting board members. To take just one example, the dissenters argued that the majority’s opinion violates nonunionized employers right to deal with individual employees individually rather than collectively by forcing such employers to accede to an employee’s request to have a coworker present at disciplinary meetings. In response, the majority emphasized that the right to have a coworker present during such interviews does not require the employer to bargain with either the employee or the coworker witness over terms or conditions of employment and, consequently, the employer’s statutory rights are not infringed.

The majority also noted that employers are completely free to forego investigatory interviews and pursue other means of resolving employee discipline issues. The dissenters, however, pointed out that some employers’ discomfort with having an additional employee witness at sensitive investigatory interviews may cause them to instead terminate and discipline employees without conducting thorough investigations or seeking out the disciplined employee’s version of events.

Will History Repeat Itself?

This is not the first time that the board has tried to extend Weingarten rights to nonunion employees. In its 1982 Materials Research Corporation opinion, 262 N.L.R.B. 1010 (1982), the board adopted the same position that it has taken in Epilepsy Foundation. Over the next three years, at least two circuit courts considered whether the board’s approach was consistent with the National Labor Relations Act. In E.I. du Pont de Nemours v. N.L.R.B., 707 F.2d 1076 (9th Cir. 1983), the Ninth Circuit refused to enforce a board opinion holding that nonunion employees must be afforded the Weingarten rights, reasoning that the request of a single employee to have a coworker attend his disciplinary meeting did not amount to concerted activity protected by the act. In contrast, the Third Circuit enforced a board order in another case involving Du Pont that directed reinstatement of an employee discharged after he refused to go forward with a disciplinary meeting without a coworker present, reasoning that the board’s extension of these rights to nonunion employees was a reasonable interpretation of the act. See E.I. du Pont de Nemours & Co. v. N.L.R.B., 724 F.2d 1061 (3d Cir. 1983). Subsequently, though, the Third Circuit granted the board’s request to vacate the decision to allow the board to reconsider its position. See E.I. du Pont de Nemours & Co. v. N.L.R.B., 733 F.2d 296 (3d Cir. 1984). On further reflection, the board reversed its stance and found that nonunion employees should not enjoy Weingarten rights, a position it adhered to for over a decade until its Epilepsy Foundation decision. See Sears, Roebuck & Co., 274 N.L.R.B. 230 (1985); E.I. DuPont & Co., 289 N.L.R.B. 627 (1988).

Attorneys for the Epilepsy Foundation have already announced plans to appeal the board’s decision. Unfortunately, the differing interpretations of the act offered by the Third and the Ninth circuits make it difficult to predict just how the federal circuit courts will receive the board’s latest change of position.

Practical Consequences
of the Board’s Opinion

While the board’s Epilepsy Foundation opinion is significant and may catch some employers by surprise, employers should not overreact. Compliance with the board’s holding should not require employers to make many material changes to their normal discipline and termination procedures. After all, the board’s ruling does not require employers to inform employees that they have the right to have a witness present during disciplinary meetings; nor must employers invite coworkers to witness such meetings. Rather, employers need only allow a coworker witness to sit in on meetings that the employee reasonably believes will result in discipline if the employee to be interviewed so requests.

As a practical matter, many nonunion employees may be unaware that they now have the right to have a coworker attend disciplinary meetings with them. Moreover, even when an employee makes a request to have a coworker sit in on such a meeting, the coworker’s role is limited: The employer is under no obligation to bargain with either the employee or the coworker over the discipline at issue.

Weingarten rights also extend only to meetings that are investigatory in nature. Accordingly, if an employer plans simply to inform one of its employees of a disciplinary decision it has already made, it need not grant the employee’s request to have a coworker present for the meeting.

Although many commentators have pointed out that the Epilepsy Foundation opinion might encourage employers to discipline or terminate employees without seeking employee input, employers should resist this temptation. As a practical matter, employers will risk far more if they decide not to conduct thorough investigations before disciplining or terminating employees than they will if they go forward with such meetings in the presence of a coworker witness. Not only could failure to conduct such investigations cause employees to believe that discipline and termination decisions are made unfairly—thus encouraging union organizing activity—but failure to thoroughly investigate some employee complaints, especially in the harassment area, could itself result in liability under federal and state civil rights laws.

Of course, the Epilepsy Foundation decision may make it more difficult to maintain the confidentiality of sensitive harassment and employee theft investigations. If confidentiality is compromised, the investigation’s effectiveness may suffer. Additionally, employers could face increased exposure to defamation and invasion of privacy claims. Employers can guard against this risk, however, by explaining the importance of confidentiality to the disciplined employee and the coworker witness and by ensuring that their managers take copious notes of what is said during investigatory interviews. Ideally, these notes should reflect that the managers verbally emphasized the importance of maintaining confidentiality during the interview process.

The board’s decision may also increase employers’ exposure to charges brought by terminated and disciplined employees who later claim—perhaps falsely—that they requested but were denied the right to have a coworker attend their termination or disciplinary meeting. To create some evidentiary record of whether the employee requested the presence of a coworker witness, employers might consider adding a check-off box to disciplinary forms and termination checklists that allows managers to check whether an employee did or did not make a request to have a coworker present. Alternatively, if the employer generally reviews these forms with employees and wishes to avoid educating its workforce about Weingarten rights, employers may consider creating “managers’ eyes only” forms with similar check-off boxes.

Before employers invest in making wholesale changes to their personnel forms, however, they should seek the guidance of experienced legal counsel to carefully review and assess whether the federal circuit court for their jurisdiction is likely to uphold the board’s interpretation. Employers should also give some thought as to whether the upcoming election might alter the board’s political composition enough to result in yet another change in position. After all, the last time the board tried to extend Weingarten rights beyond the union setting, it took less than three years for the board to change its mind. q

Robert W. Edmund is a Florida and Ohio licensed attorney in Porter Wright Morris and Arthur LLP s labor and employment department. Porter Wright has offices in Naples, Washington D.C., and throughout Ohio.

This column is submitted on behalf of the Labor and Employment Law Section, Richard C. McCrea, Jr., chair, and F. Damon Kitchen, editor.