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National Labor Relations Board General Counsel Issue Report on Recent Case Developments

Volume 2, Issue 5
May 23, 2003

On May 2, 2003, the General Counsel of the National Labor Relations Board ("Board"), Arthur F. Rosenfeld, issued a report on case handling developments in the Office of the General Counsel. The report discusses the General Counsel's Office issued enforcement guidance based on a request for advice from a Regional Director or on appeal from a Regional Director's dismissal of unfair labor practice charges during the period of September 2002 through January 2003. While such enforcement guidance is not legally binding, it provides valuable insight into the views of the General Counsel's Office, the prosecutorial arm of the NLRB that decides when to issue administrative complaints against employers for alleged unfair labor practices in violation of the National Labor Relations Act. One of the cases is particularly noteworthy.

The case involved a nonunion employer who was found to have unlawfully denied an employee's request to have a coworker representative present at the internal appeal of her discharge. Relying upon Epilepsy Foundation of Northeast Ohio v. NLRB, 268 F.3d 1095 (D.C. Cir. 2001), enfg. 331 NLRB 676 (2000), in which the NLRB determined nonunion employees are entitled to have a coworker present at any investigatory interview that could reasonably lead to discipline, the General Counsel determined that the employee had a right to a coworker's presence at the appeal meeting. Despite the fact that the disciplinary action had already occurred, the General Counsel noted that one of the potential outcomes of the appeal was that the plant manager could reverse the termination decision. See Henry Ford Health System, 320 NLRB 1153 (1996). The appeal meeting therefore was found to be investigatory in nature because the termination decision was not final until the appeal procedure was completed. This case indicates the General Counsel's continued liberal interpretation of what constitutes a meeting that could result in discipline, as discussed in Epilepsy.

Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.