Reversing its prior decisions, the National Labor Relations Board (Board) recently decided that an employee in a non-union workplace enjoys the same right as unionized employees to have a co-worker present during any investigatory interview which the employee reasonably believes might result in disciplinary action. In its Decision and Order in Epilepsy Foundation of Northeast Ohio, 331 NLRB No. 92, issued on July 10, 2000, the Board ordered the reinstatement with back pay of a non-union employee who had been discharged for gross insubordination because he refused to meet with management representatives without a co-worker present.
The right of union members to have a representative at any investigatory meeting with their employer was established in a 1975 U.S. Supreme Court case called National Labor Relations Board v. J. Weingarten, Inc., 420 U.S. 251 (1975); hence the term "Weingarten right." The Court determined that the right of representation was based on that part of the National Labor Relations Act (NLRA) that guarantees employees the right to act in concert for mutual aid and protection. In prior decisions, the Board had determined that non-union employees also enjoyed this right, and then later reversed itself. It is anticipated that the latest flip-flop by the Board, resurrecting the right for non-union employees, will eventually work its way to the U.S. Supreme Court for a final decision.
Non-union employers may be surprised to know that certain parts of the NLRA apply to all employees, not just unionized employees. The Board is responsible for interpreting the NLRA. Therefore, failure to follow the Board's recent decision may lead to the Board ordering the reinstatement of employees with back pay.
What should you do in light of the Board's decision? First, be mindful that the right to have a co-worker present only applies to meetings at which you intend to gather information in connection with possible discipline, and the employee reasonably believes that he or she may be disciplined. If you meet an employee to inform him or her of a disciplinary decision already made, the employee has no right to the presence of a co-worker.
Second, even if you intend to meet an employee for the purpose of an investigation that may lead to discipline, you do not have to inform the employee of his or her right to have a co-worker present for the meeting. The burden is on the employee to request the presence of a co-worker.
If an employee does request that a co-worker be present, you have the following options:
- cancel the meeting;
- offer the employee the choice between a meeting in the presence of a co-worker or no meeting at all; or
- grant the employee's request that a co-worker be present.
If the employee is accompanied by a co-worker at an investigatory meeting, you do not have to tolerate any unruly or disruptive behavior by the co-worker or allow the co-worker to impose any particular procedure on the meeting, nor do you have an obligation to pay the co-worker for the time. You may allow the co-worker to make any observations or suggestions he or she may have at an appropriate time during the meeting. But you are free to insist that you are only interested, at that time, in hearing the employee's own account of the matter under investigation.
Finally, remember that you can not take any adverse action against an employee for requesting the presence of a co-worker or refusing to meet with you at an investigatory meeting without a co-worker. Doing so may result in an unfair labor practice charge with the Board and an order from the Board reversing any adverse action against the employee, including reinstatement with back pay if you fired the employee.
*article courtesy of Donald T. O'Connor at the law firm of Buchanan Ingersoll.