Flying Solo

HARLAN WORKED FOR A WASTE HAULING FIRM operating a front-end loader. During a two-week period, several customers reported unpleasant encounters with him to his supervisor, Metcalfe. The supervisor then left a note on Harlan's locker, asking him to stay after his shift ended for a meeting. Metcalfe planned to confront Harlan with the complaints and get his side of the story.

Fearing that he would be chewed out, disciplined or, worse, let go, Harlan ignored the request and went straight home after work. From there, he called his boss and said that he did not want to meet until he could arrange for a co-worker to be present during the encounter. Metcalfe brushed aside the suggestion and ordered Harlan to return to the company office immediately, or consider himself out of a job. Harlan said he'd show up if a co-worker were present, and Metcalfe fired him. Harlan was told he could return the following day only to clean out his locker and pick up his final paycheck. If Harlan did not show up, Metcalfe warned, the contents of his locker would be thrown away, and his paycheck would be mailed to him.

The waste company has no unionized employees, and no one has a written employment agreement. Harlan, the other drivers, helpers, supervisors and managers are all at-will employees. They can be fired for almost any reason — or for no reason — and they have no recourse, except if their dismissal were, for example, motivated by racial considerations.

The issue of whether or not someone in Harlan's shoes has a right to bring a co-worker to a meeting like the one requested by Metcalfe has followed a twisting path.

Thirty years ago, the U.S. Supreme Court upheld the National Labor Relations Board's (NLRB) interpretation of the National Labor Relations Act that an employee had the right to union representation at a prediscliplinary interview. [NLRB v. J. Weingarten Inc., 420 U.S. 251 (1973)] Section 7 of the Act provides that employees have the right to engage in “concerted activities for the purposes of … mutual aid or protection.”

Since that time, however, the NLRB has flip-flopped on whether employees in non-union settings may rely on the Weingarten decision. In 1982, the board first extended the ruling to non-union employees. Just three years later, it reversed itself. Fifteen years after that decision, the NLRB reverted to its 1982 position and said that non-union employees had a right to have a co-worker present during an interview with their employer. [Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000)] That position gained further solidity when a federal appeals court said the board's interpretation of Section 7 was reasonable. [Epilepsy Foundation of Northeast Ohio v. NLRB, 268 F.3d 1095 (D.C. 2001)]

However, the issue took another twist last year when, by a 3-2 vote, the NLRB gelded its own Epilepsy Foundation decision. The board held that although unrepresented non-union workers may ask to have a co-worker present during an investigatory interview and cannot be disciplined for making the request, an employer can safely ignore the request without violating the federal labor law. [IBM Corp., 341 NLRB No. 148 (June 9, 2004)]

Unfortunately for Harlan — and other non-union at-will waste industry employees who may find themselves in a similar situation — employers can turn a deaf ear to pleas to have a witness present during grillings by the boss.