Disciplinary Meetings: Nonunion Employees Win Right To Have Co-Worker Attend; Know Your Options

Unionized workers have long had the right to bring a union representative with them to a disciplinary hearing. Now, in a ruling that could complicate investigations into sexual harassment and other workplace misconduct in nonunion companies, the National Labor Relations Board has ruled that nonunion workers have the same right to have a fellow employee accompany them to a meeting they believe may have disciplinary consequences.

Worker Refused To Attend Meeting Alone

The case involved two Epilepsy Foundation of Northeast Ohio employees, Arnis Borgs and Ashraful Hasan, who got into a dispute with their supervisors. When Borgs was called in to meet with the foundation’s management, he insisted on bringing Hasan but was told he couldn’t. He then refused to attend and was promptly terminated for insubordination. Hasan, whose conflicts with his supervisors persisted, was fired two months later. Both men filed complaints with the NLRB.

NLRB Expands Employee Rights

The board sided with Borgs and Hasan, saying they were entitled to be reinstated to their jobs with back pay. The ruling took an expansive view of the 1975 U.S. Supreme Court case of NLRB v. Weingarten, which gave workers the right to bring a union representative to an investigatory hearing.

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In expanding this right to nonunion employees, the board noted that the high court ruling was based on the principle that workers are entitled to engage in concerted activities for the purpose of mutual aid. The board concluded that the so-called Weingarten rights shouldn’t be limited to unionized workers.³

Three Important Conditions

An employee can invoke the right to have a co-worker present at a meeting if three conditions are met:

1. The employee makes the request. You have no obligation to notify workers of their rights.
2. The meeting is investigatory. The meeting can cover a wide range of issues from gathering facts about a harassment charge, to considering discipline for company policy violations or poor work performance, to investigating criminal activity. A meeting to inform an employee of a disciplinary decision that’s already been made doesn’t count.
3. Employee thinks discipline may be imposed. The worker must reasonably believe the interview could lead to discipline.

How To Respond

Employees working for nonunion employers are most likely to ask to bring a co-worker to an investigatory meeting in connection with matters such as harassment or other misconduct complaints. The employees, acting either on their own initiative or at a lawyer’s suggestion, may want a co-worker to attend as a witness or to help take notes.

Unless this decision is overturned, if you are confronted with an employee who demands to bring a co-worker to a meeting, you have several options:

1. Reschedule meeting. If you’re caught off guard by an employee who arrives with a co-worker, you can set the conference for another time so you can be better prepared for the changed dynamics.
2. Cancel meeting. You can call off the meeting. But you might not want to if the inquiry involves a matter such as sexual harassment because you must conduct a thorough investigation.
3. Bring your own witness. In sensitive cases, have another manager present to verify what transpires.
4. Don’t question the co-worker’s qualifications. Your employees have a broad right to bring just about any worker they want.
5. Manage the co-worker’s participation. Co-workers can make suggestions and comments, but you can insist that their remarks wait until the employee has spoken and that they not be disruptive.
6. Exclude outsiders. This ruling does not give employees the right to bring in a nonemployee representative, such as an attorney, friend or family member.
7. Seek private interview. You can give the employee the choice of being interviewed alone or having no meeting at all. However, it’s best to get professional advice before terminating or otherwise disciplining an employee who refuses to agree to a private meeting.

(3) Epilepsy Foundation of N.E. Ohio, 331 N.L.R.B. 92, 2000