Ruling Gives Nonunion Workers Right to Bring Colleague Into Investigatory Meeting

When an angry supervisor at Arnis Borgs' downtown Cleveland office called him in to a meeting, Borgs asked that his colleague be included in the session. The manager refused. That was five years ago, but a closely watched ruling centered on the case sets a new mandate for U.S. employers -- expanding to all workers the right to bring an ally to a disciplinary hearing, a privilege long prized by unionized employees.

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Arnis Borgs knew he was in deep trouble with his bosses. So when an angry supervisor at his downtown Cleveland office called him in to a meeting, Borgs asked that his colleague, a sympathizer, be included in the session. The manager refused. That was five years ago and Borgs and his co-worker were long ago fired. But a closely watched ruling centered on the case sets a new mandate for U.S. employers — expanding to all workers the right to bring an ally to a disciplinary hearing, a privilege long prized by unionized employees. That right was affirmed Nov. 2 by a federal appeals court in Washington, D.C. The court backed the National Labor Relations Board, which set a precedent last year when it decided Borgs’ employer had violated his rights. The case raises questions for employers and employees in nonunion workplaces, because it could change the rules for their coexistence. It’s unclear, though, how much workers will take advantage of this new right. “If it becomes widely used, it’s going to be a mess. If it never becomes widely used it’s just going to be a booby trap” for employers, said Dan Yager, general counsel for the Labor Policy Association, an industry group for personnel executives. Yager’s group, which argued on behalf of employers in the case, is worried the ruling could interfere with managers’ ability to discreetly handle situations including sexual harassment cases, or misconduct by a group of employees. But labor unions say the ruling could give workers the protection they need to counter managers bent on retaliating against employees who haven’t toed the line. “Having someone there for the morale courage it supplies is helpful and I think it would also be helpful if an employer is trying to cook something up (against a worker), to have someone else there, too,” said James Coppess, a lawyer for the AFL-CIO, which also presented its arguments to the court. Symbolically, the case is a win for labor, but it’s not clear whether in the real world it will have much impact, said Michael LeRoy, a professor of labor and industrial relations at the University of Illinois. “Even though people are fired every day — and therefore the issue could come up — rarely is it the case that employees ask for a friend or colleague to come to an investigatory meeting,” LeRoy said. “The case is long on symbolism and short on practical implications.” The questions raised by the decision have long been settled in union workplaces, where employees regularly bring union stewards or other representatives with them into disciplinary meetings. That right has been in place since 1975 for union workers. But the National Labor Relations Board, the federal agency that oversees union-employer relations, changed its mind several times on whether such rights also extended to nonunion workers. Since 1985, however, the NLRB has held that employees don’t have such a right when there is no recognized union. That’s where things stood when Borgs clashed with his employer, the Epilepsy Foundation of Northeast Ohio, a not-for-profit agency. Borgs worked with a colleague, Ashraful Hasan, putting together a program to move high school students with epilepsy into jobs. In 1996, they sent a memo to their boss and to the agency’s director criticizing the way they were being managed and the program was being run. The director, Christine Loehrke, scheduled a meeting with Borgs and his boss to talk things over. Borgs, who says Loehrke had a pattern of intimidating staffers, asked that Hasan be included. Loehrke refused. “I said, ‘Then frankly I don’t know what to do,’ ” Borgs said, in an interview. “She said, ‘I’ll tell you what. Surrender your key and see me tomorrow morning,’ and we both know what that meant.” Borgs was fired for refusing to meet, and Hasan was dismissed two months later. The pair then filed a complaint with the NLRB. But the Epilepsy Foundation argued it was just doing what was necessary to manage disruptive employees. “You had two individuals who basically told the employer that they no longer were going to accept supervision over their work and the head of the agency said enough is enough,” said Steven Moss, a Cleveland attorney representing the foundation. “Any employer in their right mind would’ve done the same thing.” The NLRB did not see it that way. The panel ruled last year the Epilepsy Foundation had violated the workers’ rights and that Borgs’ right to bring an ally to the meeting was retroactive. The Epilepsy Foundation appealed, and won a partial victory. The U.S. Court of Appeals for the D.C. Circuit ruled that the right was not retroactive, since it wasn’t in place at the time of the clash. But the NLRB’s decision does apply to other employers in the future, the court said. Moss said the Epilepsy Foundation was considering an appeal to the U.S. Supreme Court, but might not pursue such a case since its own interests had been protected. Borgs said he doubts many workers will take advantage of the right, but still sees it as a victory as employees seek a fairer footing with employers. “I don’t think anybody could rightfully say that they’re being mentally tormented if you have somebody of moral support sitting next to you,” he said. Copyright 2001 Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.

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