NLRB holds nonunionized employees have right to bring coworker to disciplinary meetings.

• Author: Edmund, Robert W.
• Position: Epilepsy Foundation of Northeast Ohio

Since the U.S. Supreme Court's 1975 decision in N.L.R.B. v. Weingarten, 420 U.S. 251 (1975), employees in unionized companies have had the right to have a union representative sit in on investigatory interviews and meetings that the employees reasonably believe might result in discipline against them. On July 10, however, the board issued a controversial 3-2 decision that affords nonunion workers the right to have a coworker of their choice sit in on meetings that have the potential to result in disciplinary action. The case--Epilepsy Foundation of Northeast Ohio, 331 N.L.R.B. 92 (2000)--not only represents a significant departure from prior board precedent, but it also marks the first time in almost 15 years that so-called Weingarten rights have been extended beyond the union setting.

Case Background

The facts giving rise to the board's about-face are fairly straightforward. Arnis Borgs and Ashraful Hasan, two Epilepsy Foundation specialists, claimed the foundation committed an unfair labor practice by discharging them for engaging in concerted activity protected by the National Labor Relations Act. Specifically, the employees claimed that after they sent a memorandum to management critical of their supervisor's involvement in a project, each of them was asked to meet with the supervisor and a higher-level manager face-to-face. Hasan agreed to meet with management alone, but Borgs claimed he was intimidated by the prospect of meeting with the managers by himself and requested that Hasan be allowed to attend the meeting with him. The managers refused this request, and Borgs continued to express opposition to the meeting. The next day, Borgs was terminated for refusing to meet with the managers, conduct that the managers claimed amounted to gross insubordination. A little over a month later, Hasan was also terminated in part because of his alleged refusal to accept supervision.

The Board's Decision

The board ordered both employees reinstated with back pay. Because Hasan did not request to have a coworker present during his meeting with management, the board did not fault the foundation for asking to meet with him privately to discuss the memorandum he had coauthored. Nonetheless, the board did find that Hasan's termination a month later was motivated by his participation in activity protected by the National Labor Relations Act. Specifically, the board thought the foundation terminated Hasan, at least in part, for assisting Borgs with...