The NLRB Removes Limitations on Investigatory Interviews
Since 1975, the National Labor Relations Board has held, under its decision in NLRB v. J. Weingarten, that union-represented employees enjoy the right to have a coworker present at any investigatory interview which the employee reasonably believes might result in discipline.
In 2000, in Epilepsy Foundation of Northeast Ohio, the Board extended Weingarten rights to non-union employees. Epilepsy Foundation posed serious concerns for nonunion employers. On the one hand, those who did not realize that their employees had Weingarten rights subjected themselves to unfair labor practice liability under the National Labor Relations Act, by refusing an employee’s request to have a coworker attend an investigatory interview. On the other hand, non-union employers who were cognizant of the Board’s stance on Weingarten rights found themselves limited in their ability to effectively and confidentially investigate employee misconduct and safeguard security without interference from coworkers.
On June 15, 2004, in IBM Corporation, a three-member Board overruled Epilepsy Foundation, once again holding that non-union employees do not have Weingarten rights.
The Board reasoned that a coworker witness has neither a legal duty nor personal incentive to act in the interests of the entire work force, lacks the ability to balance the employer’s power over the individual employee, will normally lack the skills and detachment of an experienced representative, and could compromise the confidentiality of the employer’s investigation. Recognizing these concerns, as well as a growing need for workplace investigations, the Board reversed Epilepsy Foundation. In fact, the Board has changed its stance on this issue four times in the last 12 years. For now, however, non-union employers may conduct investigatory interviews without yielding to an employee’s demand to have a coworker attend.
Does this mean that non-union employers can now disregard the National Labor Relations Act? No. Non-union employees still may be covered under the Act if they engage in “concerted activities “for “mutual aid or protection.” These situations might include, for instance, work stoppages, employee petitions concerning grievances, and protests over safety issues or discrimination. What the IBM Corporation decision means is that the NLRA won’t insulate from discipline or other consequences those non-union workers who refuse to participate in investigatory interviews because they are denied the right to have a coworker witness present.
If you desire further information about this decision or how it might affect your practices, please contact a member of the Halleland Lewis Nilan Labor and Employment Group. |
