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Federal Appellate Court Affirms Non-Unionized Employees’ Rights to Co-worker Representation During Investigatory Interviews

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In an earlier issue (Summer 2000), we informed you that the National Labor Relations Board (Board), the federal agency charged with administrative oversight of the National Labor Relations Act (NLRA), had ruled that non-unionized employees, like their unionized counterparts, are entitled to co-worker representation during investigatory interviews that might result in discipline.

Many employers and their counsel hoped this decision, which was contrary to longstanding Board precedent, would be reversed on appeal. Their hopes have, however been dashed as the U.S. Court of Appeals for the District of Columbia Circuit recently affirmed the Board's decision, holding that employees in non-union workplaces have Weingarten rights to request a co-worker's presence during a disciplinary interview.

The Court based it decision on the fact the NLRA grants all employees-unionized or not-the right to engage in concerted activity for the purpose of mutual aid and protection. Permitting a co-worker to be present to observe, advise and advocate for an otherwise unrepresented employee is, in the Court's view, a form of mutual aid and protection within the meaning of the statute.

What does this ruling, as a practical matter, mean for non-unionized employers? Several things:

  • There is no right to representation if the employer is announcing a final binding disciplinary decision;
  • The employee must make the representation request;

  • The employer is not required to inform the employee of his representational rights;

  • Once a representation request is made, however, the employer must inform the employee and his chosen representative of the interview agenda;

  • The employee is entitled to a reasonable amount of unpaid time to consult with his representative before the interview;

  • The representative may actively assist and counsel the employee, but may not disrupt or obstruct the interview.

Epilepsy Foundation of Northeast Ohio vs. N.L.R.B., 268 F3d 1095 (C.A.D.C., 2001)

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