By Staughton Lynd - November 22, 2003
On July 10, 2000, the National Labor Relations Board (NLRB) handed down a 3-2 decision entitled Epilepsy Foundation of Northeast Ohio. It can be cited as 331 NLRB No. 92, which means decision No. 92 in volume 331 of NLRB decisions.
Employers will no doubt attempt to reverse this decision in the courts. But so far, the Epilepsy decision has been enforced in relevant part by the only court of appeals to review it. For the moment, Epilepsy Foundation is the most important favorable labor law decision in the past 25 years.
One of the programs of the Epilepsy Foundation is school-to-work transition for teenagers with epilepsy. Arnis Borgs worked for the project as employment specialist. His coworker Ashraful Hasan was another specialist on the project.
In January 1996, Borgs and Hasan prepared two memos. The first was sent to their immediate supervisor, a man named Rick Berger, with a copy to Christine Loehrke, the Executive Director of the Foundation. The second was sent only to Ms. Loehrke. The memos were critical of Mr. Berger's involvement in the school-to-work program, cited several instances where the workers felt Mr. Berger acted inappropriately, and stated that Berger's supervision of Borgs and Hasan was no longer required.
Ms. Loehrke approached Borgs and demanded that he meet with her and Berger. Borgs asked if he could meet with Loehrke alone. She refused. Borgs then asked if Hasan could be present with him at the meeting. Loehrke refused this request as well. Borgs continued to refuse to meet alone with Loehrke and Berger, and was fired for insubordination. Hasan, however, agreed to meet with oehrke and Berger, and was given a written warning. Thereafter he refused to sign his next evaluation, and refused to sign a document setting forth written performance goals, both prepared by Berger. He was fired at the end of March.
The NLRB found both discharges illegal and directed the reinstatement of both men with full back pay and benefits. In coming to this conclusion the Board made two dramatic legal holdings.
First the Board held that, even assuming that the sole or primary purpose of Borgs and Hasan in writing their memos was to "dismiss Berger as their supervisor," their activity was protected by Section 7 of the National Labor Relations Act. The Board stated on p. 5 of its decision that the attempt by employees to cause the removal of their supervisor is protected when "it is evident that [the supervisor's conduct] had an impact on employee working conditions," citing Caterpillar, Inc., 321 NLRB 1178, 1179 (1996) and Hoytuck Corp., 285 NLRB 904 fn. 3 (1987). (Note that these citations are to pages in volumes 321 and 285, not to the numbers of the decisions.)
Since almost all conflict between a worker and a supervisor is likely to arise from the supervisor's "impact on employee working conditions," this decision offers a great deal of unexpected protection to employee protest.
Second, the Board held that Borgs' refusal to meet with Loehrke and Berger unless Hasan was present was also protected by Section 7, because the decision of the United States Supreme Court in NLRB v. Weingarten, 420 U.S. 251 (1975), "includes the right to request the presence of a coworker at an investigatory interview in a nonunion setting." This decision overruled fifteen years of NLRB precedent from 1985 to 2000 which held that Weingarten rights exist only in a situation where a union has been recognized. Thus the decision extended Weingarten rights from the 10 to 15 percent of private sector employees who are in recognized unions to every private sector worker in a workplace over which the NLRB has jurisdiction.
Under Epilepsy Foundation, a worker in a non-union shop who is asked to take part in an investigatory interview may request the presence of any other employee. "Section 7 rights do not turn on either the skills or the motives of the employee's representative," the Board stated.
Here we reproduce an excerpt from an interview with Hugo Hernandez in the book, The New Rank and File, edited by Staughton and Alice Lynd, published by Cornell University Press.
At the time of the interview Hernandez was chief steward at the Overnite Trucking terminal in Miami. The Teamsters had won an NLRB election but there was as yet (as is still the case) no contract. Hernandez tells how he used his Weingarten rights to create an improvised grievance procedure.
We think Hernandez's words can be very helpful in a non-union setting as well.
Here is how we used our Weingarten rights. When I was fighting on behalf of somebody, I would go into the manager's office and ask for the write-up. He would give me a copy of the write-up, I would then go to the worker, and we would talk about the write-up as long as we wanted: 45 minutes, an hour. We established the right to do this.
Once the worker and I had established our strategy, our game plan, we would go into the terminal manager's office. Instead of having a closed meeting, we would leave the door wide open so everybody could hear what was going on. We would bring people into witness, so it was almost like a court. Workers were waiting around to see what was going to happen. We purposefully got into loud conversations so that everyone in that part of the terminal could hear.
When we got to a point where we needed to ask a question to the worker, we wouldn't ask it in front of the terminal manager. We would ask to caucus. One day the terminal manager said, "Wait a minute. You're asking to caucus? This is ridiculous." So we said to him, "Are you denying us our right to caucus?" He thought about it. He said, "Wait a minute. I'll be right back." So he went inside his office and called the company attorney. He must have been in there fifteen minutes. He came back and said, "Go ahead and caucus."
So we went outside and caucused. And we took a long time. We did it on purpose. The management guys were standing around, waiting for us to come back in. They didn't want to disrupt us. They wanted to make sure that whatever they did, they did right.
We finally went back in. I think they just wanted to give this guy a verbal warning! But I stuck to the position, you have to prove this to me and that to me. Finally the manager said, "Look, just forget about it. Just go to work."
We did that even with a verbal warning, even if the supervisor only wanted to ask him a question. We took it to the extreme, because when we got into a situation that was more severe, they were going to think about it. They were going to say, "Wow, they gave us a rough time for a verbal warning. Imagine if we really want to go after somebody!" So we didn't have write-ups in that terminal for years.
Without a contract, you can establish a grievance system on the basis of past practice. From before the election, we would take notes on how they treated their pets, the company supporters. We compiled a master list, so I could defend the pro-union guys on the basis of disparate treatment. If one of my guys was going to be written up, I would have everything there to defend him.
In reading what follows, keep in mind that under Epilepsy Foundation a worker asked to take part in an investigatory interview may request that any other employee be present. "Section 7 rights do not turn on either the skills or the motives of the employee's representative."
THE RIGHT TO REPRESENTATION
(1) An employee is entitled to have a representative present at an investigatory interview by an employer if the employee reasonably believes that disciplinary action might result. NLRB v. Weingarten, 420 U.S. 251 (1975).
(3) The presence of a representative is not required by Weingarten if the purpose of the interview is to inform an employee of a disciplinary decision that has already been made. Baton Rouge Water Works Co., 246 NLRB 995 (1979).
(4) An employer need not postpone an interview because a representative desired by the employee is unavailable for reasons for which the employer is not responsible, if another representative is available. Coca Cola Bottling Co., 227 NLRB 1276 (1977).
(5) Weingarten does not give an employee the right to postpone a disciplinary interview in order to consult an attorney. Massachusetts General Hospital, 264 NLRB 459 (1982).
(6) If the requested representative is available, the employer may not substitute another representative. Consolidation Coal Co., 307 NLRB 976 (1992).
(7) Weingarten protections apply to polygraph tests. Consolidated Casinos Corp., 266 NLRB 988 (1983).
(8) Two Administrative Law judges have found that Epilepsy applies to situations where the employer requires drug testing. In Safeway Stores, 303 NLRB 989 (1991), and in Turner Construction, 339 NLRB No. 63 (2003), an NLRB Administrative Law Judge held that Weingarten protections apply to drug tests. But apparently neither the NLRB in Washington nor any court has ruled on this question.
(9) If the employer refuses to allow a representative to be present, the employee has a choice: either to decline to take part in the interview, in which case the employer can proceed to impose discipline, or to take part in the interview without representation.
(10) An employee may invoke his/her Weingarten rights and ask for representation after an interview has begun. NLRB v. New Jersey Bell Telephone Co., 300 NLRB 42 (1990).
CONDUCT OF THE INTERVIEW
(11) An employee who has invoked Weingarten has a right to notice of the matter under investigation and to a pre-interview consultation with his/her representative. Pacific Telephone & Telegraph Co., 262 NLRB 1048 (1982).
(12) The employer may not require the representative to be a mere silent observer. Talsol Corp., 317 NLRB 290 (1995).
(13) If the representative repeatedly interrupts and advises the employee not to answer repetitive questions, the employer may eject the representative. NLRB v. New Jersey Bell Telephone Co., 308 NLRB 277 (1992).
(14) The representative is not entitled to insult the manager, pound the table, and shout obscenities. Yellow Freight System, 317 NLRB 115 (1995).
REMEDIES FOR EMPLOYER VIOLATION
(15) If Weingarten rights are denied, reinstatement and back pay are appropriate remedies only if the employee is discharged because of invoking his/her right to representation. (This is why in Epilepsy Foundation Borgs got his job back: the employer admitted that Borgs was fired for refusing to take part in the interview without a representative present.) If Weingarten rights are denied but the employee is appropriately disciplined for the underlying misconduct that led the employer to seek an interview to begin with, the denial of Weingarten rights in itself does not require reinstatement. Of course, the discharge may be found to be an Unfair Labor Practice for other reasons. Taracorp, 273 NLRB 221 (1984).
(16). The burden is on the employer to show that discipline given an employee is not based on information obtained during an unlawful interview. DuPont & Co., 314 NLRB 674 (1994).
