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In a decision which will affect non-unionized workplaces throughout the nation, the National Labor Relations Board has held that it is an unfair labor practice for an employer to discipline a non-union employee for refusing to participate in an investigatory interview without the presence of a co-worker. This decision extends so-called Weingartenrights, previously applicable only to unionized workplaces, to those without unions as well. It is a standard practice for non-unionized employers to investigate and discipline employees without the presence of any third party. Even when employees request the presence of a co-worker, this request is routinely denied. This contrasts with unionized workplaces, where the U.S. Supreme Court has held that an employer violates Section 8(a)(1) of the National Labor Relations Act by denying an employee’s request that a union representative be present at an investigatory interview which the employee reasonably believes might result in disciplinary action. NLRB v. J. Weingarten, 420 U.S. 251 (1975). The Weingartendecision was based upon the literal wording of Section 7 of the National Labor Relations Act that “[e]mployees shall have the right . . . to engage in . . . concerted activities for the purpose of mutual aid or protection.” In Epilepsy Foundation of Northeast Ohio, the NLRB read the “mutual aid or protection” language to mean that “the Act generally affords employees [union or otherwise] the opportunity to act together to address the issue of an employer’s practice of imposing unjust punishment on employees.” “This rationale is equally applicable in circumstances where employees are not represented by a union, for in these circumstances the right to have a co-worker present at an investigatory interview also greatly enhances the employees’ opportunities to act in concert to address their concern that the employer does not initiate or continue a practice of imposing punishment unjustly.” The Board referenced its finding in Glomac Plastics, Inc., that Section 7 rights are enjoyed by “all employees and are in no wise dependent upon representation for their implementation.” Glomac Plastics, Inc., 234 NLRB 1309, 1311 (1978). FACTS OF ‘EPILEPSY FOUNDATION’ Anras Borgs and Ashraful Hasan were employees of the Epilepsy Foundation of Northeast Ohio when, in January 1996, they jointly prepared a memorandum critical of their supervisor. After Borgs and Hasan learned that senior management of the foundation were unhappy about the memo, they prepared a second memorandum elaborating upon their dissatisfaction with their supervisor. Shortly thereafter, the executive director of the foundation directed Borgs to meet with her and Borgs’ supervisor. Borgs said that he would attend if Hasan could be present during the interview. This request was denied. Borgs continued his refusal to meet with his supervisor and the executive director alone. He was subsequently discharged for gross insubordination, on the basis of his refusal to participate in the meeting. Borgs filed a complaint with the NLRB, claiming that his discharge for refusing to attend the meeting violated Section 8(a)(1) of the NLRA. This section makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.” 29 U.S.C. Section 158(a)(1). The Administrative Law Judge who first heard the case, found no violation of the act based upon the Board’s precedent in E.I. DuPont & Co., 289 NLRB 627 (1988). In that case, the Board held that Weingartenrights are not applicable in non-union settings, but acknowledged “that the statute might be amenable to other interpretations.” The DuPontdecision was, at the time, the final stop on a six-year roller coaster during which time the Board held that Weingartenrights applied to non-union employees ( Materials Research Corp., 262 NLRB 1010 [1982]); then reversed itself in Sears, Roebuck & Co., 274 NLRB 230 (1985). DuPontmodified the Searsrationale, but reinforced that Weingartenwas inapplicable to non-unionized workplaces. By a 3-2 majority, the Epilepsy FoundationBoard overruled DuPont, finding the decision to be “inconsistent with the rationale articulated in the Supreme Court’s Weingartendecision, and with the purposes of Act.” On the basis of this finding, the NLRB held that the foundation had committed an unfair labor practice by refusing Borg’s request that Hasan be permitted to attend his investigatory/disciplinary meeting. The Board ordered that Borgs be reinstated to his position with full lost wages. DISSENTS SHARPLY DISAGREE The two dissenting Board members raised numerous legal and practice concerns with the majority’s decision. The majority, in turn, attempted to respond to the dissent throughout its opinion. The principal issue raised by the dissenters, from a legal perspective, was that Weingarten, upon which Epilepsy Foundationis based, does not address, in any respect, the rights of non-unionized employees in the workplace. In fact, the Weingartencourt explained that “the union representative [safeguards] not only the particular employee’s interest, but also the interests of the entire bargaining unit by exercising vigilance to make certain that the employer does not initiate or continue a practice of imposing punishment unjustly.” The Weingartencourt based this finding upon the general principle that a union representative will be familiar with the workplace, the collective bargaining agreement, and the employee’s history in dealing with similar disciplinary matters. The dissent emphasized the difference between a union representative’s interest and that of a random co-worker in a non-union workplace. “A co-worker chosen as a representative for his or her own personal reasons, may or may not have the interests of the workforce in mind.” The majority responded to this point by stating, “the notion that employees in such circumstances would not be motivated to act in the interests of their fellow workers or that employees might lack the abilities to offer constructive assistance to the interviewed employee, is wholly speculative. It also misses the point that the employee is free to choose whether to request or forego representation. What is important is the availability of the option.” The majority also rejected the dissent’s contention that the decision goes far beyond the rights set forth in Weingarten. The majority noted that the Weingartencourt addressed only the issue of union representation, but that the principles upon which the decision was founded justified the extension set forth. IS THE REQUEST ENOUGH OR MUST THE EMPLOYER AGREE? The dissent by NLRB member Brame argues that “the mere fact that employee conduct is an attempt to obtain a mutual aid or protection does not mean that an employer must accede to the request.” Thus, “the employer would not violate the Act by refusing the request and proceeding with the implementation of workplace changes in its usual manner.” This interpretation of the act is consistent with the 3rd U.S. Circuit Court of Appeals’ decision in Slaughter v. NLRB, 876 F.2d 11 (3d Cir. 1989). In Slaughter, the court noted that “our finding that an employee in the non-union setting does not enjoy the right to insist on the presence of a fellow employee at an investigatory interview should not be read as implying that the employee enjoys no protected right simply to ask for the presence of a fellow employee at such an interview.” This argument was rejected by the majority on the grounds that “it is the actual presence of the co-worker, not the request for one, that affords the ability to act in concert for mutual aid or protection.” Finally, the majority opinion addressed the dissent’s concern that the decision could work to the detriment of employees, in that employers may choose not to conduct investigatory interviews, rather than to do so in the presence of an employee’s co-worker. This point was addressed at length by the Board in its DuPontdecision. In DuPont, the NLRB held: “to the extent that recognition of a non-union Weingartenright induces employees to insist on a condition that may in turn induce employers simply to cancel investigatory interviews [unless the employee waives his Weingartenright], there is a serious question whether extending the right to non-union employees may not work as much to their disadvantage as to their advantage.” The Epilepsy Foundationmajority disagreed with this argument, finding that it is “based wholly on speculation and assumes the worst in employer motives.” IMPLYING A FEDERAL ‘JUST CAUSE’ TERMINATION STANDARD? One of the significant aspects of the Epilepsy Foundationdecision is the Board’s emphasis upon the rights of non-unionized employees to act in concert to ensure that the employer does not impose unjust punishment. This appears to contradict the employment at-will doctrine, under which an employer may take action against an employee for any reason or no reason. The Board’s repeated use of the term “unjust punishment” comes extremely close to the standard collective bargaining language that an employee may discipline an employee only for “just cause.” While the concept of unionized employees engaging in concerted activities to prevent unjust punishment is a bedrock principle of the National Labor Relations Act, it is essentially a foreign concept to non-unionized work forces, where the employer is free to act in any legal manner towards its employees. The scenario that non-unionized employees would ban together to protest working for a particular supervisor, but could refuse to meet individually with management is essentially the fact pattern of the Epilepsy Foundationdecision. While non-unionized employees may have previously had few legal concerns about taking disciplinary action against the employees for refusing to discuss their concerns, this approach has now been called into question by Epilepsy Foundation. WHAT ROLE CAN THE CO-WORKER PLAY? The obvious concern for employers, in light of this decision, is the role of the chosen co-worker in any investigatory interview. Member Brame’s dissent noted that “while a union representative may assist the employer by helping to elicit the facts and speed things along, such assistance from a fellow employee would be less likely, because such a fellow employee would probably have no experience with such interviews and might be emotionally involved in the outcome due to his or her relationship with the interviewee.” Although the role of the co-worker was not addressed by the Epilepsy Foundationboard, in New Jersey Bell Telephone Co., 308 NLRB 277 (1992), the Board held that it is “clear from the court’s decision in Weingartenthat the role of the union representative is to provide assistance and counsel to the employee being interrogated. The court specifically declared, however, that the presence of the representative should not transform the interview into an adversary contest . . . .” The Board further explained that “the union [representative] cannot obstruct the employer in exercising its legitimate prerogative of investigating employee misconduct. The repetition of a question, or the phrasing of it in alternate ways, is a common and legitimate investigatory technique which, in our view, cannot fairly or reasonably be described as harassment. “Consequently, the representative cannot act to preclude the employer from using this technique.” In a later decision, the Board held that a union representative went beyond his appropriate role in an investigatory interview when he was verbally abusive, insulting and demeaning of the investigator. Yellow Freight System, 317 NLRB 115 (1995). In light of the Epilepsy Foundationdecision, employers in non-unionized facilities will now be faced with the choice of granting an employee’s request for a co-worker’s presence during an investigatory interview or not conducting the interview. As recognized by the dissent in Epilepsy Foundation: “The fact of the matter is that if the employer wants to get to the bottom of a situation with an employee by questioning that employee, . . . it does have an obligation to deal with that employee’s co-worker-representative.” Should the Epilepsy Foundation appeal the NLRB’s decision, it would be heard by the 6th U.S. Circuit Court of Appeals. The Weingarten court held that an appellate court must enforce a Board’s order so long as “the board’s construction . . . is at least permissible under [the Act].” Weingarten, 420 U.S. at 266-67. Courts reviewing NLRB decisions grant the Board a high degree of deference on the grounds that “the board is the authoritative expert on what will best further the purpose of . . . the Act.” Slaughter, 876 F.2d at 13. Given that the Board itself has read the act in various ways, at various times, it is unlikely that an appellate court would find the Board’s current construction “impermissible” under the Act. Sid Steinberg is a partner in Post & Schell, P.C.’sdirectors and officers litigation group. He concentrates his national litigation and consulting practice in the field of employment and employee relations law. Steinberg has lectured extensively on all aspects of employment law, including Title VII, the FMLA and the ADA.

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