By: Patrick T. Collins and Edward G. Sponzilli
October 2000

As a result of a recent National Labor Relations Board (NLRB) decision, employers who operate a non-union workplace need to be aware that they may be required to allow non-union employees the right to have a co-worker or other representative present during disciplinary interviews or questioning. In Epilepsy Foundation of Northeast Ohio, the NLRB held that this so-called “Weingarten right,” which had previously been restricted to unionized settings, should be applied to unrepresented employees as well.

The NLRB is best known for establishing and protecting the right of employees to engage in union activity. The NLRB has traditionally had a more limited role when it comes to an unorganized, non-union workplace. There, its role had been primarily limited to regulating and monitoring organizational campaigns by non-union employees seeking to become unionized. Not any more. Now, even non-union employers must be aware that whenever their management or supervisory employees question a non-union employee in a matter which could result in some sort of disciplinary proceeding against that employee, the employee has the right to have a co-worker present during the questioning.

In the Epilepsy Foundation case, two employees drafted a memo critical of their supervisor. The employer’s Executive Director ordered one of the employees to meet with her and the supervisor about the matter. Fearing discipline, the employee refused to attend unless the other employee was also permitted to attend. The Executive Director refused the demand, the employee refused to meet, and he was consequently fired for insubordination. The terminated employee complained to the NLRB, which, after investigation, held that the employee had the right to have his co-worker attend any meeting in which he “reasonably believed might result in disciplinary action.” The NLRB held that the employer’s conduct constituted an unfair labor practice under Section 7 of the National Labor Relations Act and it ordered that the employee be reinstated with back pay and interest.

The NLRB decision is grounded in the concept of “concerted activity.” The National Labor Relations Act expressly provides that employees are entitled to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Until this decision, this Section 7 language had traditionally been deemed to apply to the non-union sector in organization campaigns and the unionized sector in efforts of “mutual aid and protection.” Typically, if a union employee requests the assistance of a co-worker or union representative during questioning which might result in discipline, the employer is obligated to allow that assistance. Now, a non-union employer has the same obligation.

One important aspect of an employee’s right to mutual aid or protection is that the employee must expressly invoke the right. The employer has no obligation to advise the employee of the right to have someone present during disciplinary questioning and the right does not attach if the investigatory meeting is not likely to result in discipline to the employee.

Beyond these readily identifiable aspects, the ruling creates enormous uncertainty for employers unfamiliar with practices typical of union settings. For example, can employees being interviewed in connection with sexual harassment investigations request representation by a co-worker? The decision raises numerous questions for union-free employers and provides a new tool for both union and non-union employees.

Since a large percentage of the U.S. workforce is non-union, this decision has a significant impact on a broad range of employers. Generally, any non-retail employer with an annual gross revenue flow (in or out) of $50,000 or more and any retail establishment with an annual gross revenue flow of $500,000 or more is covered by the National Labor Relations Act.