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Arnis Borgs didn’t know he was going to wind up helping millions of fellow non-unionized workers that day in 1996 when he was called into his boss’ office for a likely tongue-lashing. Borgs, who worked at the Epilepsy Foundation of Northeast Ohio, was fired after he asked to bring a coworker into the meeting. Alleging that his termination violated the National Labor Relations Act, Borgs filed an unfair labor practice charge with the National Labor Relations Board. An administrative law judge dismissed the case, but Borgs appealed, and in July the full board ruled in his favor, ordering the foundation to offer Borgs reinstatement and back pay. If it survives an appeal, the decision will have a far-reaching effect on the non-unionized work place, and has significance for nearly all Florida employers. Up until this case, only unionized employees had the right to bring a coworker into an investigative meeting that could result in disciplinary action. Now, non-union employees — some 100 million U.S. workers — also have that right. The law applies to employers of all sizes; the only exemptions are for U.S. workers, domestic servants, and workers in airlines and other transportation companies. The NLRB’s edict extends what are known as Weingarten rights to non-union employees. In actuality, the NLRB was restoring rights that it took away in 1985, when the board was heavy with conservative Reagan appointees, said Nancy Schiffer, associate general counsel for the AFL-CIO in Washington. “This is an important right,” she said. “This gives the employee the opportunity to have a witness present, someone to be on their side. When you’re meeting with a supervisor, it can be intimidating.” Allowing coworkers to be present during such interviews, the board stated, “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.” Not everyone is thrilled with the ruling. Tom Shea, managing principal in Florida for Right Management Consultants, a national human resources consultancy, says the presence of a second worker in the interview erodes the confidentiality of the investigation. “It escalates it to more a public arena,” he says. “That can do more damage.” Regardless, labor management attorneys are scrambling to notify the companies they represent of the recent ruling. Miami-based Stearns Weaver Miller Weissler Alhadeff & Sitterson’s labor and employment law department will hold a breakfast seminar with corporate clients on Sept. 20 to discuss the decision. About 100 clients are expected to attend, said Lisa Berg, a labor and employment attorney with the firm. “At this stage I think very few employers know about the ruling,” she said. “That’s why we have the seminars, to educate them. My concern is that if an employer doesn’t know about the decision and rejects an employee’s request to have a coworker present, that’s another opportunity for litigation. They can file a frivolous lawsuit.” Berg will also explain that under the ruling, employers can elect not to hold the investigatory interview at all, and proceed with the investigation without interviewing the employee. It is precisely this aspect of the law that prompts another labor and employment attorney, Bill Katsafanas of Orlando, Fla.’s Akerman Senterfitt, to speculate that the ruling will actually have a detrimental effect on employees. “The companies will just say, fine, we won’t ask for your side of the story,” said Katsafanas. Others disagree, saying employers want to get to the bottom of any workplace disputes. “Actual experience shows that this is beneficial to employees, not detrimental,” says the AFL-CIO’s Schiffer. “The employer will not want to terminate the interview; they want to investigate.” Berg agrees. “Most employers want to be fair,” she says. “They’ve heard allegations about sexual harassment or whatever and they want to be fair and check them out.” Some south Florida companies are still studying the ruling. “This is a such a new ruling. We need to study it,” said Burger King spokeswoman Kim Miller. “However, as with any new ruling, Burger King will comply to the full extent of the law.” Attorneys for BellSouth in Atlanta say they have no problem with it. “We’ve observed this requirement with our represented employees for years,” said Peg Bernhardt, BellSouth spokeswoman. “To the extent that individual employees not represented by the union feel they would be more comfortable having a witness sit in on an interview when they reasonably feel they would be disciplined, we would have no problem with agreeing to let them do it.”

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