Ruling Extends Right to Bring an Ally to Workplace Hearing

Arnis Borgs knew he was in deep trouble with his bosses.

So when an angry supervisor at his downtown Cleveland office called him into a meeting, Borgs asked that his colleague, a sympathizer, be included in the session. The manager refused.

That was five years ago and Borgs and his co-worker were long ago fired. But a closely watched ruling centered on the case sets a new mandate for U.S. employers--expanding to all workers the right to bring an ally to a disciplinary hearing, a privilege long prized by unionized employees.

That right was affirmed last week by a federal appeals court in Washington. The court backed the National Labor Relations Board, which set a precedent last year when it decided Borgs’ employer had violated his rights.

The case raises questions for employers and employees in nonunion workplaces, because it could change the rules for their coexistence. It’s unclear, though, how much workers will take advantage of this new right.

“If it becomes widely used, it’s going to be a mess. If it never becomes widely used, it’s just going to be a booby trap” for employers, said Dan Yager, general counsel for the Labor Policy Assn., an industry group for personnel executives.

Yager’s group, which argued on behalf of employers in the case, is worried the ruling could interfere with managers’ ability to discreetly handle situations such as sexual harassment cases and misconduct by a group of employees.

But labor unions say the ruling could give workers the protection they need to counter managers bent on retaliating against employees who haven’t toed the line.

“Having someone there for the morale courage it supplies is helpful, and I think it would also be helpful if an employer is trying to cook something up [against a worker] to have someone else there too,” said James Coppess, a lawyer for the AFL-CIO, which also presented arguments to the court.

Symbolically, the case is a win for labor, but it’s not clear whether in the real world it will have much effect, said Michael LeRoy, a professor of labor and industrial relations at the University of Illinois.

“Even though people are fired every day--and therefore the issue could come up--rarely is it the case that employees ask for a friend or colleague to come to an investigatory meeting,” LeRoy said. “The case is long on symbolism and short on practical implications.”

The questions raised by the decision have long been settled in union workplaces, where employees regularly bring union stewards or other representatives with them into disciplinary meetings.

That right has been in place since 1975 for union workers. But the National Labor Relations Board, the federal agency that oversees union-employer relations, changed its mind several times on whether such rights also extended to nonunion workers.

Since 1985, however, the NLRB had held that employees don’t have such a right when there is no recognized union.