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Nonunion Workers Now Have Right to Co-Worker Representation During Investigatory Interviews

On July 10, 2000, a divided National Labor Relations Board (the “NLRB” or “Board”) reversed a twelve year precedent when it ruled that nonunion employees are entitled to have a co-worker present when summoned by the employer for an investigatory interview. Epilepsy Foundation of Northeast Ohio, Cases 8-CA-28169 and 8-CA-28264 (July 10, 2000). The decision marks a sharp departure from the Board’s previous position that so-called “Weingarten” rights — named after a 1975 Supreme Court decision — extend only to unionized workers. In so ruling, the NLRB now mandates that if an employee requests representation by a co-worker at an investigatory interview that the employee reasonably believes may lead to discipline, then the employer must abide by that request if it wishes to proceed with the interview.

The Former Precedent Decisions

In 1975, the United States Supreme Court held in NLRB v. Weingarten, Inc., that a unionized employee’s right to engage in “protected concerted activity” under the National Labor Relations Act (the “NLRA” or “Act”) includes the right to have union representation at an investigatory interview. The Court clarified that an employee’s right to representation did not extend to day-to-day business meetings or interviews; rather these rights are limited to those situations where the employee reasonably anticipated disciplinary action. The Court concluded that in this type of situation, union representation not only safeguards the interests of the individual employee but also protects the interests of the entire bargaining unit by preventing the employer from unjustly imposing punishment. Weingarten left unanswered the question of whether such rights applied to nonunion workers.

In 1982, the NLRB answered this question in the affirmative in Materials Research Corp. The Board in that case focused on employees’ rights to act collectively, rather than on a union’s right to act as the employee’s bargaining representative. However, just three years later with a change in the Board’s composition, the NLRB overruled Materials Research Corp. in Sears, Roebuck & Co., holding that the right to representation during an investigatory interview does not exist where there is no certified or recognized union. The Board based its decision on the distinction between a union and nonunion setting, and concluded that where no union is present, an employer is entirely free to deal with its employees on an individual or group basis.

In the 1988 E.L. Dupont & Co. decision, the NLRB affirmed its position that Weingarten rights were only applicable in union settings, but acknowledged that the NLRA did not compel such a result. The Board relied on several factors.

  • First, it noted that the perceived balance of economic power between labor and management was more relevant to unionized employees.
  • Second, the Board reasoned that because a nonunionized employee representative had no obligation to represent the interests of the employees as a collective group, the representative’s presence was less likely to safeguard the interests of all the employees.
  • Third, the Board discounted the nonunionized representative’s abilities to effectively represent the worker due to his or her lack of union affiliation and perceived unfamiliarity with the collective bargaining process.
  • Finally, the Board noted that Weingarten rights in a nonunion setting might be detrimental to employees, because if the employer decided to forego the interview rather than conduct it with an employee representative, the unrepresented employee could lose the only opportunity to tell his or her side of the story.


The Epilepsy Foundation Case

In its most recent decision, Epilepsy Found. of N.E. Ohio, the NLRB returned to its original position set forth in Materials Research. The case involved Arnis Borgs and a co-worker, Ashradul Hasan, who together wrote a memorandum to their supervisor, Rick Berger, expressing their view that his supervision was no longer required. A copy of the memorandum was also sent to the Epilepsy Foundation’s Executive Director, Christine Loehrke. Loehrke and Berger were very unhappy with the memorandum. Borgs and Hasan wrote another memorandum which elaborated on their reasons for the assertion that Berger should no longer supervise them.

On February 1, 1996, Loehrke directed Borgs to meet with her and Berger. Borgs felt intimidated because of an earlier reprimand he had received. He asked Loehrke if he could meet with her alone, and she declined. He then asked if he could bring Hasan to the meeting with her and Berger, and Loehrke refused this request. After he continued to express concern about meeting with his supervisors alone, Loehrke told him to go home for the day and report to work the next morning. When he did report, he was terminated for gross insubordination for failing to meet with Loehrke and Berger.

Borgs filed an unfair labor practice charge with the NLRB. After a hearing, the Administrative Law Judge (the “ALJ”) found that under existing Board precedent, a nonunion employee had no right to have a co-worker present at an investigatory interview which the employee reasonably believes could result in disciplinary action. Thus, he dismissed the charge.

On appeal, the NLRB found that Borgs was discharged for refusing to attend the meeting, and that the ALJ correctly applied existing Board precedent. After careful consideration, however, a divided Board decided that its existing precedent conflicted with the Supreme Court’s decision in Weingarten.

The Board reasoned that the proper interpretation of Weingarten is found in the Court’s attention to an employee’s right to engage in concerted activities for the purpose of mutual aid and protection. Just as a union representative aids an employee by acting collectively to address the concern that the employer might impose unjust punishment, a co-worker’s presence at an investigatory interview can serve the same purpose. The Board confirmed that an employer is free to forego the investigatory interview altogether, and pursue other means of resolving the matter.

In separate dissenting opinions, two members of the Board asserted that the protected representational rights should be reserved only for unionized settings. The dissenters argued that while nonunionized workers should have the right to request that a co-worker attend an investigatory interview, the employer should also retain the right to deny that request. As of this date, it is unknown whether this decision will be appealed to the appropriate U.S. Circuit Court.

The Impact of This Reversal

How will this decision affect the nonunion workplace? It is too early to tell. It is important to note that this decision merely gives a nonunion employee the right to have a co-worker present at an investigatory interview that he or she reasonably believes may result in disciplinary action. It does not require an employer to inform employees that they have this right. It also does not require an employer to hold the meeting if such representation is requested. However, if the employer takes any disciplinary or other adverse action against the employee for refusing to meet without a representative, it would violate the Act. The employer could still take disciplinary action against the employee for the underlying conduct leading to the meeting, although it would be doing so without obtaining the employee’s side of the story, which in certain situations could lead to other legal risks if the discipline is challenged.

This case does, however, raise many issues. For example, does the right to representation extend beyond co-workers to attorneys or other third parties? Nothing in the decision suggests that it does, but employees may nonetheless request such outside representation, presenting additional challenges for employers. Another issue is to what extent the decision will affect confidential investigations into alleged harassment, theft and other sensitive workplace problems. In many cases, these investigations could be compromised if certain co-workers are present during interviews.

It also is unclear whether many nonunion employees will assert this right, and if they do, how employers will respond. Some commentators have even suggested that the case may have the ironic effect of decreasing interest in union representation, because employees may feel they are adequately represented by co-workers. These and many related issues may not be answered definitively until and unless the Supreme Court rules on the issue.

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