United States: Labour & Employment Update ~ August 2000

Epilepsy Foundation arose out of the discharge of an employee named Arnis Borgs from his position with the Epilepsy Foundation of Northeast Ohio, a nonunion employer. Borgs and another employee, Ashraful Hasan, had sent a memo to their supervisor, Rick Berger, and to Christine Loehrke, Executive Director, stating that Berger's supervision of their work was no longer required. As described by the NLRB, the memo made Berger and Loehrke "very unhappy." In view of this reaction, Borgs and Hasan prepared another memo, this time addressed only to Loehrke, which elabourated on their reasons for claiming that Berger's supervision was no longer needed and which cited several examples of incidents in which they alleged that Berger had acted inappropriately.

In response, Loehrke directed Borgs to meet with her and Berger. Borgs felt intimidated by the prospect of such a meeting because of a reprimand he had received at a prior meeting with them. He expressed these concerns to Loehrke and asked if he could meet with her alone. When Loehrke denied this request, Borgs asked if Hasan could be present at the meeting; Loehrke also denied this request. When Borgs continued to express his opposition to meeting alone with Loehrke and Berger, Loehrke told him to go home for the day and report back at 9:00 a.m. the next morning.

The following day Borgs met with Loehrke and Jim Wilson, the Director of Administration. Loehrke told Borgs that his refusal to meet the previous day constituted gross insubordination and she terminated his employment. Borgs then filed a charge with the NLRB, which resulted in a hearing before an Administrative Law Judge.

The Administrative Law Judge found that employees in nonunionized workplaces do not have a right to representation in investigatory interviews. Accordingly, the judge ruled that Borgs had no statutory right to condition his attendance at the meeting with his supervisors on the presence of his co-worker, which, in turn, meant that his discharge did not violate Section 8(a)(1) of the National Labour Relations Act ("Act").

In reversing the Administrative Law Judge's decision, the Board held that Weingarten rights apply equally to nonunion workers. In Weingarten, the Supreme Court had determined that an employee's right to representation at an investigatory interview that the employee reasonably believes might result in disciplinary action constituted protected, concerted activity guaranteed by Section 7 of the Act. According to the Court, the presence of a union representative during an investigatory interview safeguards the interests of both the employee and the bargaining unit as a whole in ensuring the fairness of the disciplinary process.

In Epilepsy Foundation, the Board found that the rationale used by the Supreme Court in Weingarten was just as applicable to a nonunion setting, where "the right to have a co-worker present at an investigatory review also greatly enhances the employees' opportunities to act in concert to address their concern" that the employer not impose punishment unjustly. According to the Board, affording Weingarten rights to nonunion employees effectuates the policy that "Section 7 rights are enjoyed by all employees and are in no wise dependent on union representation for their implementation." The Board noted that although "an employer is generally free to deal with employees individually in the absence of union representation, an employer may not mask the obstruction of employee efforts to exercise Section 7 rights by asserting a right to deal on an individual basis."

As in Weingarten, the rights accorded employees under Epilepsy Foundation are specific and limited:

1. The right to a representative applies only to an investigatory interview—i.e., an interview conducted as part of an investigation that the employee reasonably believes could result in discipline. The right to representation, for example, does not apply to a meeting called to announce a disciplinary decision that had already been made.
2. Representation must be requested by an employee; the employer has no duty to advise an employee of the existence or availability of this right.
3. An employer may deny the request for representation and proceed to investigate by means other than an employee interview.
4. If a representative is permitted, he/she may not disrupt the interview; an employer may respond to such tactics by barring the representative, which could result in terminating the interview if the employee elects not to continue without representation.

What Epilepsy Foundation prohibits is the discipline or discharge of an employee for demanding representation or for refusing to be interviewed without it, or coercing or threatening an employee into being interviewed without the requested representation.

There are, of course, a wide range of investigatory interviews conducted by virtually all employers, union and nonunion. Indeed, numerous allegations of employee misconduct result in some form of inquiry that typically includes an investigatory interview of the alleged perpetrator. With the expanding law of workrelated harassment, and the explosion in emails, internet access and increased tools of employer surveillance, the matters that can result in investigations have multiplied and should continue to grow. However, even though the rights afforded employees by Epilepsy Foundation would appear to have broad application, we expect the actual impact of the decision to be far less significant.

The fact is that nonunion employees infrequently file NLRB charges, incorrectly viewing the agency strictly as a forum for union issues. Primarily for this reason, past decisions of the Board that have inspired dire predictions for nonunion employers have generally failed to live up to these gloomy assessments. In a nonunion setting, employees' lack of knowledge of their rights under the Act and the availability of a remedy before the NLRB have greatly mitigated the impact of Board decisions dealing with nonunion workplaces.

Even in unionized operations, Weingarten has not been the grist for a great deal of litigation. Of course, the decision is 25 years old and union employers have long since learned to comply with its requirements. Further, an employer's right to decline a request for representation and to investigate by means other than an interview tends to deter the exercise of Weingarten rights by employees. Nevertheless, we would expect Epilepsy Foundation to generate even less activity in the nonunion setting than Weingarten has created in the union context.

The real significance of Epilepsy Foundation may be as a trap for the unwary. A nonunion employer is far less likely to be familiar with the rights afforded employees by this case and far more likely to act as the Epilepsy Foundation acted by treating a demand for representation or a refusal to be interviewed without it as cause for discipline or discharge. Although resort to the NLRB might be relatively infrequent, where a violation of Epilepsy Foundation does result in a charge, the consequences could be profound— i.e., voiding an otherwise lawful, or even necessary, termination on account of a mere technicality. This is an especially severe penalty for the nonunion employer who was innocently, and understandably, unaware that the NLRB and the Act were even applicable.

In our view, the assertion of rights under Epilepsy Foundation is most likely to arise in a workplace that has both union and nonunion operations (e.g., the plant is union, the office is not). In this setting, the nonunion employees have the greatest opportunity and inclination to learn about and exercise their rights under the Act.

Finally, we should mention the potential for Epilepsy Foundation to generate interest in unionization. For a nonunion employee who requests representation at an investigatory interview, it is a relatively short leap to consider representation by a union. For example, in Epilepsy Foundation, Borgs could have concluded that representation by a union official experienced in confronting management was preferable to having Hasan accompany him to the meeting with his supervisors. Of course, the potential for this kind of thinking is greater in an operation that is already partially unionized.