NLRB Overrules Prior Decision and Concludes Non-Unionized Employees Not Entitled to Have Co-worker Present During Investigatory Interview


The Employment and Labor Law Alert

August 17, 2004

In IBM Corp., 341 N.L.R.B. 148 (6/9/04), the National Labor Relations Board changed its position for the fourth time and determined that the rights afforded to unionized workers by the United States Supreme Court’s decision in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975) are not available to non-unionized employees. The NLRB’s 3-2 ruling means that non-unionized workers are not entitled to have a co-worker present during an investigatory interview by the employer that could lead to discipline of the employee.

In Weingarten, the Supreme Court upheld a decision by the NLRB that union employees have a protected right pursuant to Section 7 of the National Labor Relations Act (NLRA) to union representation during an investigatory interview by the employer provided the employee “reasonably believes” that the interview “might result in disciplinary action.” Section 7 provides that “[e]mployees shall have the right. . .to engage in. . .concerted activities for the purpose of mutual aid or protection.” The Court explained that: “[t]he union representative whose participation he seeks is however safeguarding not only the particular employee’s interest, but also the interests of the entire bargaining unit by exercising vigilance to make certain that the employer does not initiate or continue a practice of imposing punishment unjustly. 420 U.S. at 260.

After Weingarten, the NLRB was faced with the question of whether the rights enunciated by the Supreme Court were available to non-union workers. In its first decision on the issue, Materials Research Corp., 262 N.L.R.B 1010 (1982), the Board found that the Weingarten right includes the right to request the presence of a co-worker at an investigatory interview in a nonunion setting. In two subsequent decision, Sears, Roebuck & Co., 274 N.L.R.B. 230 (1985) and E.I. DuPont & Co., 289 N.L.R.B. 627 (1988), the NLRB overruled its prior decision and concluded that Weingarten right were not available to non-union workers. The Board in Sears found that imposition of Weingarten rights would wreak havoc with the provisions of the NLRA that enable an employer to deal with employees on an individual basis when no union is present. The Sears rationale was modified in DuPont, where the Board found that the view that Weingarten rights applied only in a union setting was a “permissible”, not “mandatory,” view of the Act.

The DuPont decision remained intact until 2000, when the NLRB rendered its 3-2 decision in Epilepsy Foundation of Northeast Ohio, 331 N.L.R.B. 676 (2000). There, the employer terminated an employee after he refused to meet with his supervisor and director alone to discuss his conduct. He requested, but was denied, the opportunity to have a co-worker attend the meeting with him. Overruling itself once again, the Board determined that the Weingarten right should extend to employees in non-unionized workplaces. In doing so, the Board resurrected its 1982 decision in Materials Research Corp. The Board explained that the source of the Weingarten right was Section 7 of the NLRA, which affords protection to employees for concerted activity, and not Section 9, which codifies a union’s right to act as an employee representative for purposes of collective bargaining. The distinction was significant because it established that the Weingarten right did not depend on whether the employee is represented by a union. In this regard, the Board in Epilepsy Foundation noted that like in a union setting, “the right to have a co-worker present at an investigatory interview also greatly enhances the employees’ opportunities to act in concert to address their concern ‘that the employer does not initiate or continue a practice of imposing punishment unjustly.'” In reaching its decision, the Epilepsy Foundation Board rejected as speculative two concerns raised in its decision in DuPont: (1) that the co-worker has no obligation to represent the interests of fellow employees and (2) that the co-worker is less likely to have the skills necessary to provide representation comparable to that of a shop steward. According to the Board, the former failed to acknowledge the employee’s right to choose whether to request or forego representation and the latter failed to recognize that Section 7 rights do not turn on the skills or motives of the representative.

The factual background in IBM Corp. was not unlike the facts the Board had faced in its prior decisions on the applicability of Weingarten rights. Three employees requested but were denied the opportunity to have a co-worker present during an interview by the employer concerning harassment. They filed unfair labor charges and the administrative law judge, relying on the decision in Epilepsy Foundation, found that IBM had violated the NLRA. Before the Board, IBM argued that the considerations supporting the application of the Weingarten right to the unionized setting do not exist in the non-unionized workplace because co-workers: (1) unlike union representatives, “do not represent the interests of the entire work force,” (2) “do not have the ability to redress the perceived imbalance between the employer and its employees,” and (3) cannot “facilitate the process in the same way as a union representative.” These are the very concerns raised by the Board in its DuPont decision.

Initially, the Board acknowledged that there is more than one permissible interpretation of the NLRA when it comes to whether Weingarten rights apply to non-union employees. One such interpretation appeared in its prior decision in DuPont; the other, in Epilepsy Foundation. Under these circumstances, it is up to the Board to decide which of the two permissible approaches best furthers the policy of the Board.

Additionally, the Board noted that it was well within its adjudicative authority to re-visit and overrule its decision in Epilepsy Foundation. In particular, the Board found that the policy considerations expressed by the Board in support of its decision in Epilepsy Foundation no longer compelled the result. The Board observed that in the four years since the decision in Epilepsy Foundation, the contemporary workplace has changed, leading it to concluded that “an employer must be allowed to conduct its required investigations in a thorough, sensitive, and confidential manner. This can best be accomplished by permitting an employer in a non-union setting to investigate an employee without the presence of a co-worker.”

It is evident that the Board’s decision in IBM was motivated by what the Board perceived to be new, and more compelling, policy considerations. For example, the Board observed that the number of workplace investigations conducted by employers has risen dramatically as employers attempt to meet their federal, state and local obligations. In addition, employers must be permitted to address new security concerns raised by the September 11, 2001 terrorist attacks and an increase in workplace violence. In the Board’s view, because of these events, “the policy considerations expressed in DuPont have taken on a new vitality” and support the conclusion that Weingarten rights should not be available in a non-unionized workplace.

The Board agreed with IBM (and its prior decision in DuPont) that co-workers do not represent the interests of the entire work force the way a union representative does. While a co-worker might serve as a witness to the interview and lend some support to the employee who is being investigated, “it is speculative to find that a co-worker would think beyond the immediate situation in which he has been asked to participate and look to set precedent. A co-worker has neither the legal duty nor the personal incentive to act in the same manner as a union representative.” The Board also agreed that co-workers “do not redress the imbalance of power between the employers and the employees” and “do not have the same skills as a union representative.” In addition, the Board found that the presence of a co-worker during the investigation would compromise confidentiality and actually impede the employer’s ability to investigate and resolve the matter. Unlike a union representative, who has a fiduciary duty to the nit and thus, is likely to maintain confidentiality, the co-worker is under no obligation to maintain what he has seen or heard in confidence. Leaking of confidential and oftentimes sensitive information would be of no benefit to the employer or the employee under investigation. The Board acknowledged that some of these concerns apply even in the union setting. However, the Board felt that there was a far greater risk when a co-worker, not an experienced union representative, is involved.

The Board concluded that “the right of an employee to a co-worker’s presence in the absence of a union is outweighed by an employer’s right conduct prompt, efficient, thorough, and confidential workplace investigations.”

The IBM decision lays to rest, at least for now, a number of concerns that had been raised by the Board’s decision in Epilepsy Foundation. With the IBM decision, employers are now given greater freedom and latitude in conducting internal investigations.