The National Labour Relations Board recently ruled in the case of Epilepsy Foundation of Northeast Ohio, 331 NLRB 92 (July 10 2000), that employees who are not represented by a union have a statutory right to have a co-worker present during an investigatory interview the employee reasonably believes may result in disciplinary action. In so ruling, the board overruled 15 years of precedent under the National Labour Relations Act (NLRA).


The NLRA governs the legal relationship among employer, union and employee. In many ways, it prohibits the employer from placing limitations on, or allowing adverse effects to flow from, employees' activities for the purposes of collective bargaining, self-organization and grievance settlement. By their terms, certain provisions of the NLRA clearly apply to non-unionized employees, some clearly do not apply to such employees, and others are not entirely clear in their application.

Under Section 7 of the NLRA, employees have the right to engage in "concerted activities for the purpose of ... mutual aid or protection." Since the 1975 decision of the US Supreme Court in NLRB v Weingarten, 420 US 251 (1975), it has been settled that unionized employees have the right under Section 7 to have a union representative present at an investigatory interview the employee reasonably believes may result in disciplinary action.

While the board ruled in 1982 that this right of representation would extend to non-union employees, the board overruled itself in 1985 and reconfirmed in 1988 that a non-union employee had no right to have a co-worker accompany him to a investigatory interview. The board cited the practical differences between union and non-union settings in finding that the purposes underlying the NLRA and reflected in the Supreme Court's decision in Weingarten "are much less likely to be achieved or are irrelevant" in a non-union setting. EI Dupont & Co, 289 NLRB 627 (1988).


In Epilepsy Foundation, an employee (Borgs) in a non-union workplace requested permission to have a co-worker (Hasan) present during a meeting with his supervisor and the executive director of the foundation. Borgs believed the meeting had been called to address two memoranda in which he and Hasan suggested that their supervisor's involvement with the programme they were operating was no longer necessary. When Borgs persisted in the request to have Hasan attend, he was terminated for gross insubordination.

An administrative law judge, following prior board precedent, dismissed Borgs' claim that the foundation's termination of him as a result of his request to have Hasan attend the meeting violated the NLRA.

On review of the judge's ruling, the board determined that its precedent was inconsistent with the rationale expressed by the Supreme Court in Weingarten and the purposes of the NLRA. In a three-to-two decision, the board found that the statute's allowance for "concerted activities for the purpose of ... mutual aid or protection" would be served in the non-union context by permitting co-worker attendance at such an interview. In the board's view, the right to have a co-worker present at any investigatory interview also greatly enhances the employees' opportunities to act in concert to address their concern "that the employer does not initiate or continue a practice of imposing punishment unjustly".

The board cast aside the concern, expressed in its prior decisions and in a strident dissent, that its decision conflicted with the right of an employer to deal with employees on an individual basis where no union is present. Similarly, the board was seemingly unconcerned with the fact that a non-union representative would have no obligation to represent the interests of fellow employees and would likely not have the skills necessary to provide helpful representation. It concluded that the availability of some representation, even if that representation might be flawed, was better than no representation at all and effected the statute's policy of protecting 'concerted activity'.

The Epilepsy Foundation has sought review of the board's determination before the US Court of Appeals for the District of Columbia Circuit.


What is an employer to do? The Epilepsy Foundation Case provides that where a non-union employee requests the presence of a co-worker at an interview that he reasonably expects could lead to disciplinary action, the employer (i) must grant the request (or forego the meeting) and (ii) must not penalize the employee in any manner for having made the request. While that much is clear, the board's decision opens up numerous murky issues that are as yet unresolved.

For example, an employer might reasonably desire to separately interview employees involved in a particular incident. While Epilepsy Foundation does not specifically address whether the employer could refuse the request to have a particular co-worker present in such circumstances, it suggests the employer may have no such right, as Borgs and Hasan were both involved in the incident at issue.

Moreover, it may be unclear in particular circumstances whether an investigatory interview could reasonably be expected to lead to disciplinary action. Does an employee's annual performance review trigger the right? Arguably yes, as the review could lead to disciplinary action. On the other hand, common conversations such as "the giving of instructions or training or needed corrections of work techniques" do not trigger the right of representation. Weingarten, 420 US at 257.

Notwithstanding these murky areas, some guidance is possible. Based on Epilepsy Foundation, employers need not post or otherwise advise employees of their right to have a co-worker present at an investigatory interview. Nor is there any affirmative duty on the employer to provide advance notice of the purpose for an interview.

Moreover, the right to have another person present extends only to co-workers - not to the employee's attorney or spouse. The co-worker representative can consult with the employee during the meeting, but the employer need not bargain or engage in a debate with the representative, and the representative has no power to direct the employee not to answer questions.

Employers should advise supervisory personnel of the expanded rights available under Epilepsy Foundation so that managers properly respond to requests to have a co-worker present at investigatory interviews. Employers should also establish policies requiring management personnel to permit co-worker representatives to attend such interviews. Because the principle established by the Labour Relations Board's decision is not obvious - indeed, is contrary to what most non-unionized employers would believe the law to be - education is critical to ensure that there are no inadvertent violations of employees' newly-expanded Section 7 rights.

For further information on this topic please contact Kevin Leblang or Robert Holtzman at Kramer Levin Naftalis & Frankel LLP by (+1 212 715 9100) or by fax (+1 212 715 8000) or by e-mail ([email protected] or [email protected]).

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