Non-Union Employees
Do Not Have the Right to
Have a Co-Worker Present in an Investigatory Interview
The National Labor Relations Board (NLRB) recently made a
remarkable reversal of its previous position and ruled that nonunion
employees do not have the right to have a co-worker present during
investigatory interviews. IBM Corp., 341 NLRB No. 148 (2004). This
3-2 decision overrules the NLRB's controversial holding in Epilepsy
Foundation of Northeast Ohio, 331 NLRB No. 92 (2000) which extended the
Weingarten right to have a co-worker present during investigatory
interviews to the non-unionized setting. In IBM, the Board concluded
that policy considerations warranted a reversal of Epilepsy Foundation.
History of Confusion on this Issue
The issue of whether an employee has the right to have a
representative present during an investigatory interview originated in the
1975 United States Supreme Court decision in NLRB v. Weingarten, Inc.,
420 U.S. 251 (1975). Weingarten held that union employees have a
right to union representation whenever the employer interviews the employee
to obtain information that could be used as a basis for discipline or asks
the employee to defend his or her conduct.
The
Supreme Court held that the Weingarten right arises if the union
employee "reasonably believes" the interview might result in
disciplinary action. For example, a union employee who is merely a witness
to an allegation of misconduct might be told that discipline could result
if the employee is not truthful during the interview. The employee might
then request a representative's presence. The representative is allowed to
observe and to assist and counsel the employee.
Since
the Weingarten decision, the NLRB has changed its position four
times on whether the right of representation should also apply to non-union
employees. In 1982, the NLRB held that the Weingarten right applied
to employees who request the presence of a co-worker in a non-unionized
setting. In reaching this conclusion, the NLRB in Materials Research
Corp., 262 NLRB 1010 (1982) relied on Section 7 of the National Labor
Relations Act (NLRA). Section 7 gives employees the right to engage in
concerted activities for mutual aid or protection.
However,
just a couple of years later, the Board reversed itself in Sears,
Roebuck & Co., 274 NLRB 230 (1985) and rejected its earlier interpretation
of Section 7. The Board then held that non-union employees did not have Weingarten
rights. This decision was modified to a limited extent by E.I. DuPont
& Co., 289 NLRB 627 (1988), but DuPont still held that the
interests of labor and management were best served by not extending Weingarten
rights to non-union employees.
In
2000, the NLRB's Epilepsy Foundation decision again gave non-union
employees the right to have a co-worker present during an investigatory
interview. The right to representation was limited to a co-workers presence
and not the presence of a friend, relative, attorney or other
representative.
Board Again Reverses Position
With the IBM decision, the NLRB reversed Epilepsy
Foundation and held that in the interests of national labor relation's
policy the Weingarten right does not extend to the non-unionized
setting.
The
IBM case involved IBM's investigation into harassment allegations
raised in a letter from a former employee. IBM sought to interview three of
its employees, but denied each of their requests to have a co-worker and/or
attorney present during the interview.
All
three employees were terminated within a month of the interview, and filed
charges claiming that IBM's refusal of their request violated the NLRA. The
administrative law judge hearing the case applied Epilepsy Foundation
and concluded that IBM violated the NLRA. On appeal, IBM asked the Board to
overturn Epilepsy Foundation. The Board agreed.
Board Cites National Policy Interests
The NLRB held that the three non-union employees did not have
a right to a co-worker representative, finding recent societal and
workplace changes justified a departure from the prior rule. The Board
observed that in today's workplace employers must often interview employees
on a wide array of charges and issues, including those involving new
security concerns raised by terrorist attacks and new statutes governing
the workplace such as the laws surrounding discrimination and sexual
harassment.
Specifically,
the Board discussed the increased need for investigatory interviews due to
federal and state whistleblower laws, the rise in workplace violence,
corporate scandals, and the post 9/11 climate. "We are especially
cognizant of the rise in the number of instances of workplace violence, as
well as the increase in the number of instances of corporate abuse and
fiduciary lapses," said the Board. "Further, because of the
events of Sept. 11, 2001, and their aftermath, we must now take into
account the presence of both real and threatened terrorist attacks."
The
Board concluded that employers might need to question employees in a
"thorough, sensitive and confidential manner," best accomplished
without the presence of a co-worker. The presence of a co-worker "may compromise
the confidentiality of information." Moreover, the presence of a
co-worker might, in certain circumstances, inhibit an employee's candid
response.
The
Board further noted the difference between non-union and union settings and
that the rationale for allowing unionized employees to have a
representative does not apply in the non-union setting. A union
representative might represent the interests of the bargaining unit, but a
co-worker does not represent the interests of the whole workforce. Additionally,
a co-worker, unlike a union representative, will likely not have the skills
to help the employee during the interview. A co-worker also does not have a
fiduciary obligation to maintain confidentiality.
Impact of the Decision
The decision only affects non-union employees; union employees
still have Weingarten rights. Moreover, employees still have the
right to request a co-worker's presence during the investigatory
interview. Employees cannot be disciplined for making such a request.
However, under IBM, employers no longer have an obligation to accede
to the request and are free to deny it.
The
decision should impact how investigations in the non-union setting are
conducted. Companies should review their current investigation practices.
Employers should decide in advance that they will not allow a co-worker to
be present to best protect confidentiality and allow for candid interviews.
Companies should apply this rule consistently. Companies should also review
employee handbooks and policy manuals to make certain that they do not
state that employees are entitled to have a co-worker present. Companies
should also ensure that they do not discipline employees for the mere act
of requesting a co-worker's presence.
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