Employee Representation Ruling Means New Work for HR

The National Labor Relations Board (NLRB) recently ruled in the case ofEpilepsy Foundation of Northeast Ohio (331 NLRB 92 July 10, 2000), thatemployees who are not represented by a union have a statutory right to have aco-worker present during an investigatory interview which the employeereasonably believes may result in disciplinary action.

This ruling parallels Weingarten, which entitles union employees torepresentation during an investigatory interview, and now places an additionalburden on employers in many ways. Many employers who have prided themselves onmaintaining a union-free workplace must now begin to mirror unionizedenvironments in this aspect.

While union employees have designated shop stewards to represent them in adisciplinary or grievance meeting, this ruling seems to indicate that non-unionemployees can pick and choose who they wish to represent them.

The language of the ruling states that a co-worker can be present. Is it aco-worker designated by the employer or the employee and how is the co-workerselected? Is it a co-worker who is directly involved in the situation at hand?Other than an additional pair of ears, what will be the role of the co-worker?To what extent will co-workers be held to maintaining confidentiality of thediscussion, and to what degree will the co-workers help or detract from theemployer’s or employee’s concerns?

In addition to placing an additional burden on employers, the employeesselected to be representatives may otherwise not wish to be involved, but may becalled upon to “represent” their co-worker just the same. Can therepresentative co-worker refuse such involvement and will their job becompromised because of such a refusal? For instance, if there is aninvestigation into a sexual harassment claim with an employee, a representativeco-worker may in fact refuse or at least be unwilling to attend such a meeting.

The NLRB’s purpose seems to say that employees must at least be given anopportunity to be heard and perhaps even understood before any disciplinaryaction is taken, such as termination. But as well intended as this ruling mightbe, it is this legal bind that will strangle the necks of organizations that aredoing just that — treating their employees like people and hearingtheir concerns.

It is this writer’s opinion that those organizations that have establishedpolicies and practices to meet the needs of the organization as well as theneeds of the employees will see minimum requests for this type ofrepresentation.

Organizations that falter in this aspect and whose employees may feel thatthey have no voice could see many requests for such representation. The ways inwhich organizations can respond and minimize requests for representation are toresearch best practices, establish steering committees and focus groups, and usethe knowledge of human resources staff to establish practices and policies underwhich employees feel that their voices and concerns are considered.