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NLRB Rules Employers Must Allow Co-Worker Representation At Investigatory Interviews

By Jeffrey S. Klein, Nicholas J. Pappas and Aiko D. Bunn

Recently, the National Labor Relations Board (“NLRB”) decided a case that may have a significant impact on how private employers question non-unionized employees about matters that may lead to discipline their employees.  In Epilepsy Foundation of Northeast Ohio, 331 N.L.R.B. 92 (July 10, 2000), the NLRB ruled that under federal labor law an employer is required to grant an employee’s request to have a co-worker present at an “investigatory interview.” The NLRB defined “investigatory interview” as any meeting with an employee that the employee reasonably believes might result in disciplinary action.  This ruling extended to non-unionized employees the same rights to co-worker representation that the United States Supreme Court recognized for union-represented employees twenty-five years ago in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975).

Although Epilepsy Foundation will likely be appealed, this decision now constitutes a precedent that the NLRB will apply to private employers throughout the United States. Accordingly, it is vitally important that management understand this ruling, and follow proper procedures when an employee requests that a co-worker be present at an investigatory interview.

The Right to “Representation”
In Epilepsy Foundation, the employer, Epilepsy Foundation of Northeast Ohio (“Epilepsy Foundation”), was a non-profit company which provided services to persons with epilepsy.  At issue in the case was the termination of two employees, Arnis Borgs and Ashraful Hasan, who worked on one of Epilepsy Foundation’s programs involving a research project concerning school-to-work transition for teenagers with epilepsy.  Borgs worked on the project as an employment specialist while Hasan was a transition specialist.

In January 1996, Borgs and Hasan sent a memorandum to Epilepsy Foundation’s Director of Vocational Services, Berger, their supervisor on the project, stating that his supervision was no longer required.  A copy of this memorandum was also sent to the Executive Director.  Thereafter, Borgs and Hasan learned that their supervisor and the Executive Director were very unhappy about the memorandum.  Thus, they prepared another memorandum, this time addressed to the Executive Director alone, which elaborated on the reasons for their prior assertion that Berger’s supervision was no longer needed.  In particular, the memorandum was critical of their supervisor’s involvement in the program and cited several examples of incidents where, in their view, their supervisor acted inappropriately.

Shortly after receipt of the two memoranda, the Executive Director approached Borgs and directed him to meet with her and Berger.  Because of a reprimand Borgs had received at a prior meeting with them, wherein Borgs was interrogated about his discussions concerning salary information with other employees and then reprimanded for having those discussions, Borgs expressed reservations to the Executive Director and asked if he could instead meet with her alone.  She refused Borgs’ request.  Borgs then asked if Hasan could be present with him at the meeting.  The Executive Director refused this request as well.  Borgs continued to express his opposition to meeting alone with the Executive Director and Berger.  In response to the opposition, Borgs was told to go home for the day and report back at 9 a.m. the next morning.  The following morning, Borgs met with the Executive Director and the Director of Administration.  At this meeting, the Executive Director told Borgs that his refusal to meet the previous day constituted gross insubordination and he was discharged.  The letter of termination given to Borgs described the failure to attend the meeting as gross insubordination and also made reference to the earlier memorandum concerning Borg’s supervisor.

Thereafter, Borgs filed a charge with the NLRB alleging that Epilepsy Foundation had committed certain violations of Section 8(a)(1) of the Act by reprimanding him for discussing employee wages, and, more pertinent to the discussion here, by discharging him for engaging in concerted activity when he and Hasan prepared the memoranda regarding their supervisor and when he was later terminated for his failure to meet with his supervisors after his request for Hasan to attend the meeting was refused.  Although the Administrative Law Judge (the “ALJ”) found that Epilepsy Foundation violated the Act when it reprimanded him for discussing employee wages, the ALJ refused to find that it violated the Act when it terminated his employment for his failure to attend the meeting after his request to have Hasan present was refused.  Relying on existing NLRB precedent, the ALJ found that Borgs, a non-union employee, was not entitled to Weingarten rights.  The NLRB reversed the ALJ’s decision with respect to this ruling.

While the NLRB agreed with the ALJ’s finding that Borgs was discharged for refusing to attend the meeting with his supervisor and the executive director, and that the ALJ accurately applied relevant NLRB precedent, the NLRB determined that that precedent was inconsistent with the rationale articulated in the Supreme Court’s Weingarten decision and thus which it was overruling its precedent.  The NLRB stated that the Court in Weingarten found that the employee’s action in seeking representation at an investigatory interview which the employee reasonably believed might result in disciplinary action fell within the literal wording of Section 7 of the Act that “employees shall have the right . . . to engage in . . . concerted activities for the purpose of mutual aid or protection.”  In overruling past NLRB precedent which limited Weingarten rights to unionized workplaces, the NLRB stated that its rationale established in Weingarten is “equally applicable in circumstances where employees are not represented by a union, for, in these circumstances, the right to have a coworker present at an 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 NLRB then decided to apply its decision retroactively and ordered that Epilepsy Foundation, among other things, offer Borgs full reinstatement, backpay, benefits and interest.

Procedures for Employee Interviews

Based on Epilepsy Foundation, it is important for non-unionized employers to follow several guidelines when conducting employee interviews:

The right to have a co-worker present during the course of an interview arises only if the interview is “investigatory” and a reasonable person would believe that the interview might result in discipline.

The employee must request that a co-worker be present at the interview.  The employer is not required to inform an employee of his right to have a co-worker present during an investigatory interview nor is the employer required to volunteer to provide a representative.

Determining when an interview is “investigatory” depends on the basic purpose and character of the interview.  When a significant purpose of the interview is to obtain facts to support disciplinary action that is probable or that is being seriously considered, then the interview is considered investigatory.  For example, the following interviews would most likely be considered investigatory:
  • complaints of sexual harassment or other types of unlawful discrimination;
  • investigations relating to inappropriate behavior like insubordinate conduct, workplace violence or theft;
  • investigations relating to violations of workplace policies like substance abuse policies; or
  • questioning an employee on their failure to meet a quota.
  •  By contrast, the following interviews and/or meetings would most likely not be considered investigatory:
  •  meetings that are solely for the purpose of reviewing work rules;
  • correcting an employee’s errors;
  •  imposing discipline on an employee, where the employee is not asked to supply information regarding the subject of the disciplinary action;
  •  explaining a pending disciplinary action, again, where the employee is not asked to supply information regarding the subject of the disciplinary action;
  •  informing an employee of a pre-determined termination; or
  •  counseling an employee with no reason to believe that disciplinary action will result.

Employers should be mindful that the character of a meeting can change midstream.  For example, were the employer to inform the employee of a disciplinary action and then seek facts or evidence in support of or against its action, or attempt to have the employee admit his alleged wrongdoing or to sign a statement to that effect, Weingarten rights may apply.

Employees who are about to undergo investigatory interviews from which they can reasonably expect disciplinary action to arise are entitled, upon request, to pre-interview notification of the subject of the interview and pre-interview consultation with their co-worker representative.  A general notice as to the subject of the investigation should be sufficient.

An employer may dispense with an employee’s reasonable belief that the meeting will result in disciplinary action if the employer distributes a pre-interview notice that no disciplinary action will be taken as a result of the meeting.

The employee can insist on a specific co-employee, but if the specific employee is unavailable the employer does not commit an unfair labor practice by proceeding with the interview and not waiting for that employee to become available.  However, should the employee request an alternate co-employee and is then denied that request, there may be a violation.

If the employee requests the presence of a co-worker, the employer can either:  (a) proceed with the interview with the co-employee present;

(b) forego the interview; or (c) require the employee to choose between no interview or an interview without representation.  The employer is not required to justify his refusal to proceed with the interview when the employee requests a representative.  Moreover, the employer is free to carry on its inquiry and subsequent discipline without interviewing the employee.  In making these determinations, the employer should consider whether the presence of a particular co-employee will be a hindrance to the investigation and whether the employer has sufficient information to proceed with the discipline without a meeting with that particular employee.

The co-employee may be there either as a representative, to assist the employee or offer the names of other employees with knowledge, or to corroborate the employee’s version of the facts.  The employer, however, is under no duty to “bargain” with the co-employee witness/representative or make concessions or compromise.  Thus, although it is unclear exactly what the rights of the co-employee witness are, it appears that the employer cannot relegate him to that of a “silent observer.”  However, the employer can request him to remain silent and not interfere with the questioning until after the employee tells his version of the incident.

Unless the employer has agreed otherwise, the employer is not required to pay the representative for time spent in the interview, even if the investigation is conducted on company time.

Finally, because there may be much dispute as to whether the interview is investigatory, thereby triggering Weingarten rights, it is strongly suggested that employers encourage all supervisors to record the exact purpose and subject matter of a prospective interview before going into the interview, and keep an accurate account of the actual meeting itself in order to determine whether a seemingly routine interaction to review an employee’s errors or inform an employee of a pre-determined disciplinary action, for example, turns investigatory.

The NLRB’s decision in Epilepsy Foundation creates a new and possibly expansive right that can make disciplinary actions against employees more difficult to undertake.  Management must now understand that employees have a right to co-worker representation in investigatory interviews.  Investigations into complaints of sexual harassment, workplace violence, insubordination or other types of workplace issues may implicate such rights.  

The right recognized by Epilepsy Foundation has not been completely fleshed out by the NLRB, and there will continue to be questions regarding how Epilepsy Foundation applies in specific factual circumstances.  Employers with questions as to how Epilepsy Foundation applies to specific circumstances are advised to contact counsel for guidance.