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Many private employers are unaware of the fact that the National Labor Relations Board has jurisdiction over all nonunion employers who engage in interstate commerce. A recent decision has further expanded the NLRB’s grip on private employers by extending rights long enjoyed by union employees to nonunion employees. Specifically, private employers, who until recently could freely interview nonunion employees while investigating workplace misconduct that could give rise to employee discipline, may no longer do so unhampered. The NLRB held in a controversial 3-2 decision, that an employee subject to discipline has a protected right under Section 7 of the National Labor Relations Act to request and have a co-employee present as a witness during an investigatory interview. Epilepsy Foundation of Northeast Ohio, 331 NLRB No. 92 (2000). This decision extends to nonunion employees a right to representation analogous to that which has been enjoyed by union employees since the U.S. Supreme Court’s landmark decision in NLRB v. Weingarten, 420 U.S. 251 (1975). BACK AND FORTH In Weingarten, the Court upheld a decision by the NLRB finding that union employees have a protected right to union representation during an investigatory interview by the employer, when the employee “reasonably believes” that the interview “might result in disciplinary action.” The Court found this right to be provided pursuant to Section 7 of the NLRA, which provides in pertinent part that “[e]mployees shall have the right … to engage in … concerted activities for the purpose of mutual aid or protection.” Since Weingarten, the NLRB has had great difficulty in deciding whether to extend such rights, commonly referred to as Weingarten rights, to nonunion employees, overruling itself on several occasions. In 1982, the NLRB, then led by a Democratic majority, extended Weingarten rights to nonunion employees in Materials Research Corp., 262 NLRB 1010 (1982). Materials Research stood for only three years. In 1985, the NLRB, then consisting of a Republican-appointed majority, overruled itself in Sears, Roebuck & Co., 274 NLRB 230 (1985), finding that Weingarten principles did not apply where there is not a union because a nonunion employer had the right to deal with its employees individually. Following Sears, Roebuck & Co., the NLRB revisited a prior decision in which it had directed reinstatement of a nonunion employee whose Weingarten rights had been violated. E.I. DuPont de Nemours v. NLRB, 724 F.2d 1061 (3d Cir. 1983). While noting that the decision in Materials Research was not necessarily inconsistent with the NLRA, it held that Weingarten rights “should not” be extended to nonunion employees. E.I. DuPont & Co., 289 NLRB 627 (1988). Subsequently, in Slaughter v. NLRB, 876 F.2d 11 (3d Cir. 1989), the Third Circuit, reviewing the NLRB’s reconsidered decision in E.I. DuPont & Co., deferred to the NLRB by denying review of its decision to not require that Weingarten rights be extended to nonunion employees. In Epilepsy Foundation, the NLRB, made up of five Clinton appointees– three Democrats and two Republicans — returned to the position originally adopted in Materials Research. EPILEPSY FOUNDATION The Epilepsy Foundation decision arose out of the termination of two employees of the Epilepsy Foundation of Northeast Ohio, an organization that provides services to people with epilepsy. The two employees, Borg and Hasan, addressed a memorandum to their supervisor indicating that his supervision was no longer needed on their project and forwarded the memo to the foundation’s executive director. After learning that their supervisor disagreed with the memo, they sent a longer and more critical memorandum to the executive director, detailing their problems with the supervisor’s performance on the project. Several days later, the executive director asked Borg to meet with her and the supervisor. Borg requested that the meeting be with the executive director alone; however, his request was refused. Borg subsequently asked if Hasan could attend the meeting, but this request was also denied. Based in large part, on his refusal to meet alone with the executive director and his supervisor, Borg was terminated for gross insubordination. Hasan was terminated several months later for refusing to accept supervision. Borg filed an unfair labor practice charge with the NLRB, claiming that it was a violation of Section 8(a)(1) of the NLRA to discharge him for requesting the presence of a co-worker at the investigatory meeting. Section 8(a)(1) of the NLRA forbids employers from interfering with, restraining or coercing employees who choose to engage in concerted activities. The administrative law judge reviewing the case correctly noted that such rights were only available to employees in unionized work forces pursuant to the U.S. Supreme Court precedent established in Weingarten. Upon review, the NLRB noted its agreement with the administrative law judge’s findings of fact and legal precedent, however, stating that: “we find that precedent to be inconsistent with the rationale articulated in the Supreme Court’s Weingarten decision, and with the purposes of the Act. Consequently, we shall overrule that precedent today and find that the [employee's] termination … for his attempt to have a coworker present at the meeting was unlawful.” In doing so the NLRB stressed that the U.S. Supreme Court’s decision in Weingarten was based on the notion that all employees have the right to engage in “concerted activities for the purpose of mutual aid or protection.” The NLRB addressed and rejected the concerns raised by dissenting board members, specifically finding that nonunion employers do not have an unfettered right to deal on an individual basis with employees. Moreover, the board found that allowing the presence of a co-worker in an investigatory interview does not amount to forcing employers to deal with “organized labor” and noted that the Third Circuit “soundly rejected” this contention in Slaughter. Based on its decision, the board ordered that Borg be reinstated with back pay. While Hasan’s discharge was based on different grounds, as he agreed to and did, in fact, meet alone with his supervisor and the executive director, the NLRB also ordered that he be reinstated with back pay, finding that the employer would not have discharged him in the absence of protected activity. PRESENT STATUS In light of the number of times the NLRB has reversed its own decision on this subject and the recent U.S. presidential administration change, it is unlikely that the board’s decision in Epilepsy Foundation will stand indefinitely. Indeed, the board is likely to reverse itself some time in the not so distant future. Moreover, the decision will be reviewed by the Court of Appeals for the D.C. Circuit as the Epilepsy Foundation filed a petition for review on July 27, 2000, entitled Epilepsy Foundation of Northeast Ohio v. NLRB (Case No. 00-1332). Oral argument is scheduled for Oct. 2, 2001. CURRENT REQUIREMENTS Notwithstanding the fact that the decision may not stand indefinitely, employers should understand the current requirements of the decision because serious remedies may be imposed if it is determined that an employee’s rights were violated. Specifically, the NLRB will consider a variety of remedies including a cease and desist order, a notice to employees, reinstatement and back pay. Essentially, the NLRB’s ruling in Epilepsy Foundation requires that if an employee requests a co-employee’s presence at an “investigatory interview” the employer has the following options: (i) grant the request; (ii) forgo the interview; or (iii) request that the employee waive his right to the presence of a co-worker by advising him that they will not proceed with the interview unless the employee is willing to attend alone. Importantly, the right to request a co-worker’s presence only attaches to an “investigatory interview” — an interview conducted for the purpose of gathering facts — that the employee reasonably believes might result in disciplinary action. The right does not attach to other types of meetings, such as where the employer is merely informing the employee of a disciplinary decision it has already made. It may be difficult for employers to distinguish between interviews triggering Weingarten rights and those that do not due to the subjective nature of an employee’s belief that disciplinary action may be imposed. Accordingly, it is important to treat seriously any request for the presence of a co-worker at an investigatory interview. Notably, an employer need not offer employees the opportunity to have a co-worker present at an investigatory meeting; the right arises only in situations where the employee requests representation. Further, an employer has no duty to bargain with the co-worker who is attending the interview. Also, rights under Section 7 of the NLRA typically extend only to employees, not supervisors or managers. (Whether someone is an employee or a supervisor or a manager is decided on a case-by-case basis.) PRACTICAL IMPLICATIONS While the majority of NLRB members in Epilepsy Foundation stressed that employers have the option of forgoing investigatory meetings rather than allowing a co-worker to attend, they failed to address the problems that may arise by doing so. Specifically, it would be particularly difficult for an employer to defend a sexual harassment or discrimination claim initiated by an employee without a prompt and thorough investigation, as required by state and federal discrimination laws. In that regard, the board conspicuously neglected to discuss an employer’s obligation to undertake a prompt investigation in the context of discrimination and harassment complaints. In such situations, the Epilepsy Foundation decision places employers in a particularly difficult situation because, while it may not be advisable for employers to allow a co-employee to attend an interview due to confidentiality concerns, forgoing the interview will certainly limit an employer’s ability to invoke powerful affirmative defenses. See Burlington Indus. V. Ellerth, 525 U.S. 743 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). The Epilepsy Foundation decision may hamper an employer’s ability to conduct prompt and confidential investigations of discrimination and harassment complaints. It also places employers in a precarious situation where the requested co-worker is not available, demands compensation or insists on bargaining for the employee being interviewed. Although the decision does not directly address these issues, waiting for the requested co-worker to be available may compromise the investigation; failure to pay the co-worker for time spent attending the investigatory interview could subject an employer to a wage claim under the Fair Labor Standards Act or applicable state law; and terminating an interview if the co-worker insists on bargaining and the employee refuses to meet alone could be construed as a violation of the employee’s Weingarten rights. There are no clear-cut answers to these problems. Employers should undertake a review of any complaint procedures and alternative dispute resolution programs contained in their policy manuals to ensure that there is no language that prohibits an employee from having a co-worker present during an investigatory interview. Moreover, it would be prudent for employers to review prior terminations to determine whether any were based on an employee’s refusal to participate in an investigatory interview without a co-worker present, where the employee can be said to have reasonably believed that disciplinary action was likely to result. Christine A. Amalfe is a director of Gibbons, Del Deo, Dolan, Griffinger & Vecchione of Newark and practices in the area of employment law. Heather A. Adelman is a sole practitioner in Short Hills who writes extensively in the area of employment law.

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