by Jackson Lewis

The extent to which employees not covered by collective bargaining agreements are protected from discipline and discharge for concerted activities under the National Labor Relations Act has been at issue in several recent court decisions. In one case, the U.S. Supreme Court let stand an appeals court decision that nonunion workers have so-called "Weingarten" rights to request that a co-worker accompany them to investigatory interviews that may result in discipline (Epilepsy Foundation of Northeast Ohio v. NLRB, U.S., No. 01-1292, cert. denied 6/10/02).

Last November, the U.S. Court of Appeals for the District of Columbia upheld a decision by the National Labor Relations Board to extend to nonunion employees the right to have a co-worker present during an investigatory interview when there is a likelihood that discipline will be imposed. That ruling overturned a 12-year Labor Board precedent of refusing to grant nonunion workers the same rights to representation at investigatory interviews accorded to union members in NLRB v. J. Weingarten Inc., 420 U.S. 251 (1975).

Finding the Labor Board's new position to be reasonable, the appeals court pointed out that the NLRB has gone back and forth on the issue of the applicability of Weingarten to nonunion workers. "It is a fact of life in NLRB lore that certain substantive provisions of the NLRA invariably fluctuate with the changing composition of the board. Because the board's new interpretation is reasonable under the Act, it is entitled to deference," the court said.

Request for Coworker at Interview Denied
The case stemmed from the discharge of two employees of the Epilepsy Foundation of Northeast Ohio after they were requested to attend a disciplinary meeting for criticizing their boss in a memorandum to the boss's supervisor. One employee refused to attend his meeting unless the other employee could accompany him. The company refused his request and subsequently fired him for refusing to meet with his supervisors. The remaining employee attended a disciplinary meeting and received a warning notice for helping to create the memo. A few months later, he was fired for refusing to accept supervision.

Although an NLRB administrative law judge found the employer's actions did not violate the NLRA, the Labor reversed those findings and extended the Weingarten rule to nonunion workers. The appeals court, while refusing to apply the new rule retroactively to find the Epilepsy Foundation in violation of the Act, upheld the Labor Board's ruling that nonunion employees are entitled to have a coworker present at an investigatory interview when there is a likelihood that discipline will result.

Discussions About Bonuses Not Grounds for Discipline
In another case applying the NLRA to nonunion employees, the California Court of Appeal recently ruled in Grant-Burton v. Covenant Care, Inc. (July 10, 2002) that non-union employees may not be disciplined for participating in group discussions with other employees about the fairness of their employer's bonus system. The court's decision creates a new California "public policy" and appears to have overlooked the preemptive nature of the federal labor laws. Grant-Burton v. Covenant Care, Inc. (July 10, 2002).

The employer was a health care provider with 42 union and nonunion facilities. In 1999, the employee attended a meeting of all seven marketing directors where they discussed the bonus structures at the various facilities. The employee told the group she did not receive a bonus because her executive director "did not believe in them."

When the executive director subsequently fired the employee for participating in the bonus discussion, the employee filed suit alleging, among other things, wrongful termination in violation of public policy and violation of California Labor Code section 232, which prohibits employers from disciplining employees for disclosing their "wages." Following the trial court's dismissal of the case, the Court of Appeal reversed and allowed her to proceed with the wrongful termination claim.

The court based its decision on the premise that firing an employee for discussing "wages," which includes bonuses, is an unfair labor practice under California law, as well as the NLRA. Since the court specifically held that firing an employee for discussing compensation issues with other employees constituted an unfair labor practice under the NLRA, it appears the wrongful termination claim would have been preempted. However, the reasoning used by the court in not finding the termination claim to be preempted is not evident from the opinion.

What These Decisions Mean for Employers
Both cases illustrate the reach of the federal labor laws - typically understood to apply to unionized employees or those seeking union representation -- to nonunion employees outside of any organizing activity. All employers must be aware of the risk of preventing employees from engaging in "concerted activity," such as discussing working conditions, compensation, and the like. In light of this opinion, employers should review their handbooks and personnel policies to ensure their current practices do not violate the NLRA, even if their workplaces are nonunion.