Four years after the National Labor Relations Board (NLRB) extended the Weingarten rule to nonunion employees in Epilepsy Foundation, the NLRB, in a 3-2 decision, has reversed direction, overruling Epilepsy Foundation and holding that nonunion employees do not have the right to have a representative present during an investigatory interview. IBM Corp. (NLRB 2004).
In NLRB v. Weingarten, Inc. (1975), the United States Supreme Court held that a union employee has the right to have union representation at an investigatory interview when the employee could reasonably believe the investigation will result in disciplinary action. In Epilepsy Foundation of Northeast Ohio (NLRB 2000), a majority of the Board held that Weingarten rights apply to nonunion employees.
On June 15, 2004, the Board issued its fourth decision in the last 23 years on the issue of nonunion rights of representation, this time holding 3-2 that nonunion employees do not have the Weingarten right to have a representative present during an investigative interview that might lead to discipline. The IBM holding expressly overrules the Board’s Epilepsy Foundation decision.
Although the IBM decision holds that nonunion employees have no right to representation during an investigatory interview, the Board made it clear that employees still retain the right to ask for the presence of a co-worker and cannot be disciplined for making such a request. The Board only held that nonunion employers have no obligation to accede to such a request.
Employer Notes: Among other considerations when conducting workplace investigations, employers should be alert to a witness’s potential right to representation during the witness interview. In particular, where the witness is a union employee or may possibly be involved in union activity or other conduct protected under the National Labor Relations Act, the employer must consider any rights to representation the witness may have and the scope of such rights.
This article was provided by Kelly D. Ludwick, Meredith K. Olafson, and Kelli D. Jackson of HUNTON & WILLIAMS LLP. Email: kludwick@hunton.com. Web site: www.hunton.com.
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