United States: NLRB Regulates Non-Union Employer Conduct

On July 10, 2000, the National Labour Relations Board changes course for a second time and held that non-union employees have a right to have a co-worker present during an investigatory meeting that may result in disciplinary action. This means that all employees, union and non-union alike, have the right to request a co-worker be present during such meetings.

Since a Supreme Court decision in 1975, the law has been that union employees have a right to representation during meetings where discipline may occur. This principle was originally applied to non-union settings as well in 1982 by the NLRB. However, the NLRB reversed this decision in 1985, finding that employers had a right to deal with employees on an individual basis. From 1985 until July, 2000, non-union employees did not have a right to have a co-worker present.

The NLRB decision will have an immediate and profound impact on how employee investigations are conducted. If an employee requests that someone be present during an investigatory meeting, the request must be granted. To do otherwise, will violate the National Labour Relations Act (NLRA). The NLRA gives employees the right to act in concert to address the concern that the employer does not initiate or continue to impose punishment unjustly.

The recent NLRB ruling involving the Epilepsy Foundation of Northeast Ohio, involved a situation where two employees wrote a memorandum criticising their supervisor. One of the employees was asked to participate in a meeting with the manager and supervisor. The employee asked that the other employee who authored the memorandum also attend the meeting and the request was refused. The employee refused to attend the meeting and was terminated for insubordination. The NLRB ruled that the employee had been wrongfully terminated because he was merely attempting to assert a right he had under the NLRA.

Employers should be wary that the NLRB has had other recent decisions affecting the non-union work settings. In Flamingo Hilton-Laughlin, the NLRB held that the contents of an employee handbook violated the NLRA. Most of the challenged rules in the handbook concerned revealing of confidential information by employees, dress code policy, off-duty solicitation and patronising property prior to a work shift. The Board held that several of the rules were vague and could possibly prohibit union organising activity. For instance, a policy allowing management to discipline employees for dress code violations was unlawful because it could prohibit employees from wearing union buttons.

Although the Epilepsy decision may be appealed, for now employers are obligated to follow the principles set forth by the NLRB.