Only union workers entitled to witness.

Byline: ON THE JOB By Dan Grinfas For The Register-Guard

Question: When we call an employee in for a disciplinary meeting, do we have to allow the employee to bring a co-worker as a witness or representative? We are a nonunion operation, and we've heard conflicting information as to our obligations.

Answer: It is easy to understand your confusion because cases decided by the National Labor Relations Board have changed the rule for nonunion employers four times since 1982.

Based on the most recent ruling, the answer to your question is no. As a nonunion employer, you are not obligated to allow an employee's co-worker to attend a disciplinary or investigatory meeting.

Your question raises the issue of "Weingarten" rights. In 1975, the U.S. Supreme Court ruled in the case of NLRB vs. J. Weingarten Inc. that unionized workers have the right to representation during any investigatory interview that they reasonably believe may result in discipline.

The Weingarten decision was based on Section 7 of the National Labor Relations Act, which says that employees have the right to engage in "concerted activities for the purpose of mutual aid or protection."

The Weingarten rule still holds for employees represented under a collective bargaining agreement.

In 2000, a ruling by the NLRB in Epilepsy Foundation of Northeast Ohio extended Weingarten rights to nonunion workers. The nonunion employer in that case denied an employee's request to have a co-worker present at a meeting to discuss workplace misconduct. The employer then terminated the worker after he refused to meet alone with his supervisor and director. The NLRB determined that the employer had committed an unfair labor practice in violation of the NLRA.

In June 2004, that decision was overturned in a case involving IBM.

In the IBM case, a worker accused several others of harassment, and the company conducted interviews with those individuals. During a second round of interviews, three of the employees requested to have a co-worker present. IBM refused, and the three were later terminated.

Based on the Epilepsy Foundation case, an administrative law judge initially ruled that IBM had committed an unfair labor practice. But on appeal, the NLRB overturned its prior ruling, finding that "on balance, the right of an employee to a co-worker's presence in the absence of a union is outweighed by an employer's right to conduct prompt, efficient, thorough and confidential workplace investigations."

The bottom line? Employers today are only obligated to grant Weingarten rights in unionized workplaces.

Even in union settings, it is up to the employee to invoke his or her rights. Union employees sometimes confuse Weingarten rights with Miranda rights. Under Miranda rules, police who question criminal suspects have an affirmative obligation to notify them of their right to remain silent and to have attorney representation. The Weingarten case, however, does not require employers to notify an employee that he or she has the right to union representation. The employee has to ask.

Union employees have Weingarten rights with respect to investigatory interviews. But not every discussion with a supervisor is an investigatory interview. For example, an employee wouldn't have a right to have a co-worker present for routine discussions with management or in a case where a supervisor merely describes the proper way to do a job. The answer could change if the conversation becomes hostile, such that the employee has a reasonable belief that it may lead to discipline.

If a union employee does request representation, either before or during an investigatory interview, the employer has three choices: Grant the request and delay questioning until the union representative arrives; deny the request and end the interview immediately; or give the employee a choice of having the interview without representation or ending the interview.

On The Job is written by attorney Dan Grinfas of the Oregon Bureau of Labor and Industries. Contact BOLI at [phone], or BOLI, 800 N.E. Oregon St. No. 32, Portland, OR 97232.