Companion Complications

Nonunion waste industry employees under investigation by their employers now have rights formerly reserved for unionized workers, according to a National Labor Relations Board (NLRB) ruling. [Epilepsy Foundation of Northeast Ohio, 331 N.L.R.B. No. 92, July 10, 2000]

Ann Cody (not her real name) owns a nonunion East Coast waste hauling firm. A reliable source tells her that three employees may be involved in shenanigans that could spell civil or criminal liability for the company.

After checking around, she concludes that Gilbert is the likely ringleader. She believes his accomplices, Jerry and Will, are clueless henchmen. Ann confronts Jerry, expecting he will cave-in and implicate Gilbert and Will. Her goal is to undo or minimize damage to the company and outsiders.

When Ann asks Jerry to meet with her, he nervously insists that Gilbert be present as his representative. She avoids an immediate answer, and instead invites Will to meet with her. His response is the same. Thwarted, she threatens to fire both Will and Jerry if they refuse separate interviews.

If Jerry and Will won't budge, can Ann legally terminate them?

Until last July, Ann might have fired both employees without a second thought. Since then, however, a 3-to-2 NLRB decision has changed the ground rules in nonunionized workplaces. Under the ruling, the National Labor Relations Act (NLRA), which ordinarily applies only to union shops, now gives a nonunion employee under disciplinary investigation the right to request representation by a co-worker during questioning by the employer.

An employer that fails or refuses to honor the demand may be guilty of an unfair labor practice. Noncompliance with the new NLRB rule can subject employers to cease-and-desist orders or, depending on the circumstances, worker reinstatement with back pay.

The new rule "take[s] away from a nonunion employer its heretofore unfettered right ... to deal individually with its employees," a dissenting board member says.

Eighteen years ago, the NLRB ruled that NLRA rights extend to nonunion employees. [Material Research Corp., 262 N.L.R.B. 1010, 1982] Three years later, a newly constituted board overturned Material Research saying, "to place a ... representative in a nonunion setting is to require the employer to recognize and deal with the equivalent of a union representative, contrary to the [NLRA's] exclusivity principle." [Sears, Roebuck & Co., 274 N.L.R.B. 230, 1985] Epilepsy Foundation represents yet another flip-flop.

The new ruling has key limitations: First, most managerial and supervisory employees are exempt; second, employers may conduct solitary interviews unless the employee specifically requests a representative; third, a private attorney does not qualify as a representative; similarly, the representative cannot engage in tactics that interfere with the purposes of the interview. Sadly, the case law is unclear on whether employers may exclude representatives who themselves may be implicated in the acts under investigation.