Epilepsy Foundation of N.E. Ohio, 331 NLRB No. 92 (2000)

Landmark NLRB Decision Extends So-Called Weingarten Right
to a Representative at Disciplinary Meetings
to Include All Employees, Union and Non-Union Alike

Unless confronted with a union organizing drive, most non-union employers rarely concern themselves with the National Labor Relations Board (NLRB), whose primary domain is enforcing the laws governing union/employer relationships. That is likely to change, however, thanks to a decision of the NLRB rendered on July 10, 2000 in Epilepsy Foundation of N.E. Ohio, 331 NLRB No. 92 (2000). By a 3 – 2 margin, divided squarely by a Clinton-appointed majority versus dissenting Republican Board members, the NLRB ruled that any non-union employee called to a meeting which the employee "reasonably believes" may result in disciplinary action, is entitled to be accompanied by a co-employee of their choice. By this decision the NLRB has drastically increased its role in the non-union employment setting.

To fully understand the significance of this far-reaching decision, a bit of history is in order. In 1975, the Supreme Court upheld the NLRB’s declaration that an employee’s insistence upon union representation at an investigative interview, which the employee reasonably believes might result in disciplinary action, is "concerted activity" protected by the National Labor Relations Act. Union representation was therefore made somewhat comparable to the right to counsel in criminal cases. Disciplining or discharging an employee for refusing to cooperate in such an investigative interview without union representation was deemed unlawful.

The rights of union representation, now well known to those who deal with unions, are commonly referred to as "Weingarten" rights (named after the 1975 case). In 1982 the NLRB extended Weingarten rights to non-union employees by allowing for a request for representation by a fellow employee. However, just 3 years later, in 1985, the NLRB reversed that case in a well-reasoned decision. Since then, although it is recognized that the request may be protected against reprisal, employers have been under no obligation to grant the request or alter their action.

The NLRB has now come full circle, renewing the right of non-union employees to insist on being accompanied by a co-worker of their choice at any meeting that potentially could lead to disciplinary action. Any non-union employers unaware of this very recent landmark decision run the risk of being introduced to the NLRB, perhaps for the first time, under less than pleasant circumstances involving charges of unfair labor practices.

Dealing With the Aftermath of Epilepsy Foundation

The Board majority in Epilepsy Foundation articulated its newly recognized right of representation in the non-union setting but provided almost no guidance on how that right would play itself out in the day-to-day dealings between management and employees. For instance, the Board’s decision is presently limited to a permitting only a single co-worker to act as a representative. Will future Board decisions expand this right to include representation by non-employees, perhaps union representatives in the course of an organizing campaign? Furthermore, while the Epilepsy Foundation ruling appears to suggest that the employee must trigger this newfound right by affirmatively requesting a representative, others may argue that employers have a duty to notify employees of this right (the AFL-CIO is already promoting this extension of the decision).

In the event the employee requests a representative, prior Board law in the union setting suggests that a "reasonable time" should be afforded the employee to seek out a representative before proceeding with the interview. A reasonable time should be determined by the particular facts of the matter. However, this decision fails to account for other laws. For instance, cases interpreting Title VII of the Civil Rights Act of 1964 require that employers take prompt action to investigate claims of sexual or other forms of discrimination or harassment. What happens when an employee requests a representative who is not immediately available? Employers should have the right to tell the employee to pick an alternate representative to conduct the interview promptly. Additionally, the Epilepsy Foundation Board did not say whether a co-worker representative should be paid for their time. In the union setting, compensating union stewards to, for example, investigate grievances is generally determined by contract, under "union business." This suggests that an employer would have to agree voluntarily to compensate a co-worker representative. However, because the new Epilepsy Foundation right exists in the non-union environment, outside of union business, failing to pay a co-worker could subject an employer to a wage claim under the Fair Labor Standards Act or similar state laws.

The Epilepsy Foundation decision also fails to address a situation in which the employee and the requested representative are both suspected of misconduct. Should the representative be allowed in the interview, thereby allowing the suspected conspirators to collaborate their stories? An employer would have a legitimate business reason for not allowing the representative into the interview. Still, because the Board offers no guidance on implementing its decision in the real world employers can expect to litigate these issues.

Since the representative is at the interview for the purpose of "mutual aid and protection," an active role may be taken. Weingarten and its’ progeny suggest that the representative may clarify facts, ask questions or give comments. However, none of these cases address what happens when the representative gets unruly. Would dismissing the unruly representative from the interview be seen as unlawful interference with an employee’s right to representation? Weingarten says that an employer need not "negotiate" with a representative but this still leaves plenty of room for disagreement, and litigation, over the role of the representative.

Perhaps the greatest gray area of the Epilepsy Foundation decision involves interpretation of the stated premise upon which the newly recognized right of representation is recognized. Specifically, the Board declared that an employee’s right to demand representation is limited to those instances where the employee "reasonably believes" a meeting may result in discipline. Although this ostensibly is an objective standard, many employers will be unable to determine with any degree of certainty when these conditions are present. It will not be enough for an employer to say that disciplinary action was not contemplated if the employee nevertheless reasonably believed discipline was a possible outcome of the interview. As a result, many employers will permit nearly all employee requests for representation to avoid the risk of violating the labor laws.

Finally, an apparent loophole for employers stated in the Epilepsy Foundation decision closes shut rather quickly in light of other laws. The Epilepsy Foundation Board stated that an employer confronted with an employee’s demand for representation can cancel the interview altogether and render its decision without the employee’s input. While this may sound appealing to some, foregoing investigative interviews could expose employers to unforeseen problems in other areas of the law where a duty is imposed to thoroughly investigate (for example, in instances of alleged harassment).

The Board’s decision in Epilepsy Foundation has been appealed to the United States Court of Appeals District of Columbia Circuit. Unless and until Epilepsy Foundation is overturned employers are obliged to grant on demand an employee’s right of representation, with little guidance on what that right entails.

To review this decision, see Epilepsy Foundation of N.E. Ohio, 331 NLRB No. 92.

Posted 8/29/2000