NLRB Expands Employee’s Right to Representation When Questioned by a Non-Unionized Employer

The National Labor Relations Board ruled that employees in the non-unionized workforce are entitled to have a coworker present, upon an employee’s request, during an investigatory interview where the employee reasonably believes disciplinary action could result. Epilepsy Foundation of Northeast Ohio, 331 NLRB 92 (2000). The Board’s rationale, based on NLRB v. J. Weingarten, 420 U.S. 251 (1975), was that the National Labor Relations Act, specifically section 7 which protects employees’ rights to engage in concerted activities for the purpose of mutual aid or protection, applies to all employees and is not dependent on union representation for its implementation.

Two employees of the Epilepsy Foundation, Amis Borgs and Asad Ashraful, prepared a memo criticizing their supervisor. The Foundation’s Executive Director asked Borgs to attend a meeting to discuss the memo, where Borgs’ supervisor would also be present. Borgs expressed his feelings of intimidation and asked if he could meet with just the Executive Director. This request was refused. He then asked if his coworker, Ashraful, could be present with him at this meeting. This request was also refused, and Borgs continued to oppose attending the meeting. The next day, Borgs was terminated. He was told that his refusal to meet the previous day amounted to gross insubordination. Borgs filed a complaint with the NLRB, and after a hearing, an Administrative Law Judge found that Borgs was terminated for his refusal to meet with the Executive Director and his supervisor, but that under current law, nonunionized employees do not have the right to condition attendance to such meetings on the presence of a representative. The NLRB’s decision in this case explicitly recognizes such a right, overruling precedent, and orders the employees’ reinstatement including backpay.

In Weingarten, the U.S. Supreme Court held that an employer violated the NLRA when it denied an employee’s request for a union representative to be present in an investigatory interview which could reasonably result in disciplinary action. This right was founded on section 7 of the Act, which gives employees the right to engage in concerted activities for the purpose of mutual aid or protection. The decision in Weingarten did not address the issue here-whether this right extends to nonunionized employees as well. Earlier decisions of the NLRB, including Sears, Roebuck, Co., 274 NLRB 230 (1985) and E.I. DuPont & Co., 289 NLRB 627 (1988), did address the issue and specifically found that these Weingarten rights are not applicable in nonunion settings.

This decision in Epilepsy Foundation of Northeast Ohio overturns those precedents and holds that the NRLA clearly protects the right of employees, unionized or not, to act in concert for mutual aid or protection. Additionally the Board stated that this right to have a coworker present directly advances this right by affording employees the opportunity to act in concert to prevent a practice of unjust punishment.

This decision does not force an employer to deal with employee representatives, or bargain collectively with the representative. As the Board makes clear, the employer may use other means of resolving the issue with the employee instead of an investigatory interview-this type of setting being the only situation addressed by this ruling. Furthermore, it is entirely the employees’ choice whether to have representation at all. He or she is free to forego representation.

However, as mentioned above, violation of the employees’ NLRA rights can be costly. The remedy includes reinstatement with backpay. More recently, an Administrative Law Judge ordered reinstatement, backpay and benefits, plus interest. While this ruling is likely to be challenged through the appeal process in federal court, until the outcome is reached, refusal of an employee’s request for representation at investigatory interviews that may result in discipline is a risky course of action.

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