ISSUES EMERGING IN THE WAKE OF THE EPILEPSY FOUNDATION RULING

Abstract

On November 2, 2001, the United States Court of Appeals for the District of Columbia upheld the National Labor Relations Board’s decision to extend the right to engage in concerted activities for the purpose of mutual aid or protection in the workplace to nonunionized employees. This right, until now enjoyed only by unionized employees, guarantees that employees may request union or coworker representation at investigatory interviews likely to result in disciplinary action. However, as the theory on which this decision rests finds translation into practice, several significant issues have come to the fore for timely discussion. The right to representation at an investigatory interview emanates from Sections 7 and 8(a)(1) of the National Labor Relations Act [1]. Section 8(a)(1) makes it an unfair labor practice for employers to interfere with, restrain, or coerce employees in the exercise of their rights to organize and collectively bargain, while Section 7 guarantees employees the right to engage in concerted activities for the purpose of mutual aid or protection. In a 1975 case, NLRB v. J Weingarten, Inc., the Supreme Court held that an employer violated Section 8(a)(1) by denying an employee’s request that a union representative be present at an investigatory interview that the employee reasonably believed might result in disciplinary action [2]. The Court agreed with the National Labor Relations Board (NLRB) that an employee’s right to engage in concerted activity includes an employee’s right to seek assistance from the employee’s statutory representative in the face of an inquiry that could lead to discipline or dismissal. In Weingarten, the Court reasoned that the union representative participating in an investigatory conference that could result in