No Right to Presence of Coworkers During Investigatory Interviews In Nonunion Workplaces

Contents

• Background
• Post-Weingarten
• IBM Corp. Steps to Take

On June 16, 2004, the National Labor Relations Board (NLRB) ruled that nonunion employees do not have the right to the presence of a coworker during investigatory interviews. The presence of a coworker during an investigatory interview which the employee reasonably believes may result in disciplinary action is called a "Weingarten right." Under the new ruling, the NLRB found that employers must be allowed to conduct required investigations without the presence of an employee's coworker. The new ruling notes that the workplace environment has changed, and that the changes include "ever-increasing requirements to conduct workplace investigations, as well as new security concerns raised by incidents of national and workplace violence." The NLRB decision overrules its decision in Epilepsy Foundation of Northeast Ohio, 331 NLRB 676, which extended Weingarten rights to nonunion employees, and restores the 15 years of precedent established in Sears, Roebuck & Co. and E.I. DuPont & Co.

Section 7 of the National Labor Relations Act, 29 U.S.C. § 157 (1973) (NLRA) provides that "employees shall have the right ... to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection … " An employee’s activity that is both "concerted" in nature and pursued for union-related purposes aimed at collective bargaining or for other "mutual aid or protection" receives protection under the NLRA. Activity is "concerted" when undertaken with or without the authority of coworkers and not solely on the individual employee’s behalf. Activity is pursued for "mutual aid or protection" when it "improve[s] terms and conditions of employment or otherwise improve[s] their lot as employees ..." Congress created the NLRB to protect rights afforded under the NLRA, particularly those rights provided under Section 8 regarding unfair labor practices. Section 8(a)(1) of the NLRA provides that "it shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section [7] …"

From 1945 through 1975, the NLRB vacillated over the following issue. If an employer refused to permit the presence of a union representative during an investigatory interview constituting "concerted activity" undertaken for "mutual aid or protection," was that violative of Section 7 of the NLRA? Or was it a proper exercise of an employer’s authority over its workforce? The NLRB drew a distinction between an investigatory interview in advance of which no decision had been made to discipline the employee and one in which, prior to the interview, a decision had been made to impose discipline.

In 1975, in NLRB v. J. Weingarten, 420 U.S. 251, the Supreme Court upheld the NLRB’s decision that in a union setting, Section 7 requires the presence of a coworker at an investigatory interview. Such a right falls within Section 7's literal words, and "[t]he union representative whose participation [the employee] he seeks is ... safeguarding not only the particular employee’s interests 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." According to the Court, Section 7 "creates a statutory right in an employee to refuse to submit without union representation to an interview,"if the employee requests a representative and the employee’s fear of discipline is reasonable when measured by an objective standard. This right does not apply, however, to "such run-of-the-mill shop-floor conversations as ... giving instructions or training or needed corrections of work techniques." Likewise, the right does not apply to "a conversation that is merely to inform the employee of a disciplinary decision that has already been made.

Although the Supreme Court resolved the issue of the presence of a coworker during an investigatory interview of a union employee, the opinion left unanswered whether this right to engage in concerted activity applied to nonunion employees in the private sector. Following Weingarten, the NLRB concluded that the right to the presence of a union representative placed the employer and employee on equal footing and should be afforded to nonunion employees, Materials Research Corp., 262 NLRB 1010 (1982). The NLRB reasoned that the presence of a representative advances the purposes of the NLRA and may be more important in the nonunion setting where employees do not have access to the grievance rights afforded union employees under a collective bargaining agreement.

With a change in membership, the NLRB overruled Materials Research Corp. three years later in Sears, Roebuck & Co., 274 NLRB 230 (1985). The NLRB reasoned that Section 7 does not extend to circumstances where there is no certified or recognized union. To permit the presence of an employee’s representative, the NLRB found, interferes with a nonunion employer’s right to deal with nonunion employees on an individual basis.

In 1988, in E.I. DuPont & Co., 289 NLRB 627 (1988), the NLRB disavowed, in part, Sears, Roebuck & Co. and reasoned that "the interests of both labor and management are better served by declining to extent this right into that forum [a nonunion setting]." In so holding, the NLRB noted, "we also take into account the non-union employer’s interests in conducting investigations in accordance with their own established practices and in maintaining efficiency of operation." In a union setting, the employer’s conduct can be challenged in a grievance proceeding; but in a nonunion shop, nonunion employees may lose their chance to provide their side of the story if the employer decides to forego such interviews.

In 2000, the NLRB weighed employees’ and employers’ rights in a nonunion setting again in Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000). Relying on Weingarten, a majority of the NLRB concluded that an Employee’s actions in seeking representation during an employer’s investigatory interview fell within the language of Section 7. Based on the concept of "concerted activities for mutual aid or protection," the NLRB rejected previous decisions limiting the right to a unionized workplace. The NLRB emphasized "the right to have a coworker present at an investigatory interview also greatly enhances the employees’ opportunities to act in concert to address the concern ‘that the employer does not initiate or continue a practice of imposing punishment unjustly."’

The U.S. Court of Appeals for the District of Columbia agreed that "Section 7 rights are enjoyed by all employees and are in no way dependent on union representation or their implementation." Epilepsy Foundation of Northeast Ohio v. NLRB, 268 F.3d 1095 (D.C. Cir. 2001). The court rejected the foundation;s argument that the NLRB’s decision was contrary to Weingarten, in that Weingarten did not deal with a nonunion setting. The court also recognized that the "changing compositions of the Board" result in fluctuations in the interpretation of certain provisions of the NLRA. Because the Epilepsy Board’s interpretation of Section 7 was reasonable, it was entitled to deference.

The sole issue before the NLRB in IBM Corp. was whether the company, whose employees are not represented by a union, violated Section 8(a)(1) of the NLRB by denying the employees' requests to have a coworker present during investigatory interviews. In overruling Epilepsy Foundation, the NLRB found national labor relations policy best served by returning to the earlier precedent of DuPont, holding Weingarten rights do not apply in a nonunion setting. The NLRB recognized the many changes in the workplace environment warranting investigations conducted without the presence of a coworker.

The NLRB also found Weingarten rights do not extend to nonunion workplaces because of the clear distinctions between union and nonunion settings. The policy considerations supporting denial of Weingarten rights in a nonunion setting include, for example, the fact that coworkers in a nonunion setting do not represent the interests of the entire work force. Therefore, the concern in Weingarten - that a union representative accompany a unit employee to an investigatory interview to "safeguard" the interests of the entire bargaining unit - is inapplicable. Similarly, coworkers in a nonunion setting cannot redress the imbalance of power between employers and employees. In a nonunion setting, a coworker chosen on an ad hoc basis has no "official status" to bring to the employee’s interview and does not "level the playing field" - a very real concern in the union setting. Further, coworkers in a nonunion setting do not have the same level of skill possessed by union representatives in a union setting. Weingarten acknowledged the "unique skills" a union representative brings to the interview which can facilitate the interview, clarify issues, eliminate extraneous material, and save the employer valuable production time. The NLRB noted that in the nonunion setting, the accompanying coworker generally is chosen not for any skills in facilitating the interview or resolving the issues that gave rise to the interview, but because of a personal connection with the employee and to provide moral and emotional support. Indeed, because of the lack of skills as a facilitator, the coworker’s very presence may frustrate or impede an investigation. Further, the mere presence of a coworker may compromise the confidentiality of the information provided during the interview. Employers are required to conduct many such investigations with the utmost discretion and confidentiality. For example, when an employer conducts a harassment investigation, it is essential to remain in compliance with the obligations imposed under Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth. But the presence of a coworker at such an interview may impede the fact-finding process by inhibiting the candid discussion of personal issues and may frustrate the company’s interest in keeping the fact and contents of the investigation confidential.

• Employers should examine their policies regarding the presence of coworkers during any type of investigatory interview;

• Employers should revise any policy which conflicts with the NLRB's opinion in IBM Corp.;

• Nonunion employees may still request the presence of a coworker at an investigatory interview and may not be disciplined for making such a request;

• Employers are no longer, however, required to accede to the employee’s request; and

• This opinion does not affect union employers’ obligations under Weingarten.

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