Non-Unionized Employees No Longer Have Right to an Employee Representative In Disciplinary Investigations.

In a major victory for employers, the National Labor Relations Board (Board) recently overruled its decision in Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000), and ruled that non-unionized employees do not have the right to have co-workers present at investigatory interviews that may lead to discipline. IBM Corp., 341 NLRB No. 148. In the 3-2 decision, the Board acknowledged that extending Weingarten rights to the nonunion setting, or limiting them to union workplaces, are both permissible interpretations of the National Labor Relations Act (Act), but that policy reasons supported denying representation rights to non-unionized employees. This decision marks the fourth time in 23 years that the Board has changed its position on the issue of whether Weingarten rights are limited to unionized employees.

In IBM Corp., the employer began investigating employees as part of a sexual harassment investigation, and the employees asked to have a co-worker present during their interview. The employer denied the request. The employees were terminated about a month later. An administrative law judge, applying Epilepsy Foundation, found that the employer violated Section 8(a)(1) of the Act by denying the employees' requests for a representative during their interviews. The employer appealed to the Board, urging that Epilepsy Foundation be overruled. The employer argued that co-workers, unlike union representatives, do not represent the interests of the entire unit, cannot redress the imbalance of power between the employer and employee, and cannot facilitate the interview process like a union representative.

The Board concluded that, on balance, the right of an employee to a co-worker's presence during an interview is outweighed by the employer's right to conduct a prompt, efficient, thorough and confidential investigation. Chairman Battista and Member Meisburg noted that in the contemporary workplace, there are ever-increasing requirements to conduct workplace investigations, as well as new security concerns raised by workplace violence and terrorism threats. Accordingly, they concluded that an employer must be allowed to conduct workplace investigations in a thorough, sensitive and confidential manner, and that this can best be accomplished in a nonunion setting without the presence of a co-worker. In a separate concurring opinion, Member Schaumber concluded that Weingarten rights are unique to employees represented by a union. He noted that a union representative is accustomed to administering the union contract, is familiar with the law of the shop, and can propose solutions that could avoid the filing of a grievance. However, the Board concluded that a co-worker is unlikely to bring those skills to the interview, because the co-worker has no experience as the statutory representative of the employee, and could actually frustrate or impede the employer's investigation.

Practical Implications of NLRB's Decision

The IBM decision represents just another swing in the Board's pendulum on this issue. As noted above, the Board has switched positions four times on this issue in 23 years, and the switches have tended to coincide with changes in administration and Board composition. Furthermore, the IBM case was decided by a narrow 3-2 margin, and even the majority said that a reasonable interpretation of the National Labor Relations Act supports either position regarding the right to representation at investigatory interviews. As a result, a change in the current Board's composition could result in a further change in the Board's position.

For the time being, however, the Board has relieved human resource professionals, managers and supervisors of the burden of determining whether a non-union employee's request for representation during an investigation must be granted. Employers are no longer faced with the unpalatable choice of either granting the request for representation at the risk of compromising the confidentiality of the investigation or declining to interview the employee requesting representation at the risk of compromising the thoroughness of the investigation. This decision also reduces the risk employers face from tort claims, such as defamation or negligence that may occur when a third-party employee becomes a part of the investigation and discipline process. In short, the decision allows employers to deal directly with employees in disciplinary matters and conduct thorough and fair investigations without interference.

Employers also should remember that, even though employees do not have

the right to the presence of a co-worker in the interview, they do have the

right to ask for a representative. Even though a non-unionized employer no

longer has to honor that request, it cannot discipline the employee for

making it.

The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.

Mr Mark Spognardi

Holland & Knight LLP

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