United States: NLRB Limits Non-Union Employees´ Rights to Representation

In IBM Corp., 341 NLRB No. 148 (2004), the National Labor Relations Board (the Board) overruled its July 2000 decision in Epilepsy Foundation of Northeast Ohio, 331 NLRB No. 92 (2000). Consequently, the Board has ruled that employers can now deny non-union employees’ requests to have a coworker present during investigatory interviews that the non-union employee reasonably believes might result in discipline. IBM Corp., 341 NLRB No. 148 (2004).

In 1975, the U.S. Supreme Court held, in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), that an employee who is represented by a union may insist on the presence of a union representative during an investigatory meeting with management, if the employee "reasonably believes" that "the investigation will result in disciplinary action." The employer must allow a union representative to be present and may not discipline the employee for requesting or insisting upon union representation. This right has become known as a union employee’s "Weingarten rights."

In the years immediately following Weingarten, the Board’s position as to whether Weingarten rights extended to employees who were not members of a union has varied. In 1982, the Board held that non-union employees had Weingarten rights equivalent to those of union employees and could insist on the presence of a fellow employee during an investigatory meeting. Materials Research Corp., 262 NLRB 1010 (1982). Three years later, the Board reversed itself in Sears Roebuck & Co., 274 NLRB 230 (1985) and held that non-union employees were not entitled to have a coworker present. Subsequently, the Board clarified that while a non-union employee could request to have a coworker present, he or she was not entitled to a coworker’s presence and could be disciplined for refusing to meet without the presence of a coworker.

In Epilepsy Foundation, the Board held that if an employer wishes to meet with a non-union employee to "investigate" an incident for the purpose of determining whether discipline is warranted, the employee has Weingarten rights and may insist upon a coworker being present at that meeting. With IBM Corp., the Board has returned to its prior view that Weingarten rights apply only in a union setting.

Employers can once again deal with non-union employees on an individual basis when conducting investigations into matters that occur in the workplace. By reinstating its view that Weingarten rights do not extend to the non-union workplace, the Board seeks to ensure that employers can "take steps to prevent sexual and racial harassment, to avoid the use of toxic chemicals, to provide a drug-free and violence-free workplace, to resolve issues involving employee health matters, and the like." IBM Corp., 341 NLRB No. 148 (2004). Stated differently, employers again have the discretion to control the interview and investigation process regarding claims against or discipline problems involving non-union employees.

In addition, employers with a non-union workforce have the option of foregoing an employee interview and concluding a workplace investigation based on independent research. However, this alternative is not advisable because it exposes the employer to potential legal liability should a non-union employee bring a claim asserting that unfair discipline was imposed due to an incomplete investigation. Instead, an employer considering a discipline problem or a claim regarding employee misconduct should request to interview the affected non-union employee on an individual basis. If the non-union employee chooses not to participate without the presence of a coworker or other advisor, the employer may move forward with its investigation, but should use care to document its investigatory process and should attempt to locate evidence to support its conclusions.

In IBM Corp. the Board acknowledged that there are two permissible views regarding non-union employees’ Weingarten rights. This concession leaves IBM Corp. open to overruling by subsequent boards. In light of the constantly-changing state of the law in this area, employers facing questions as to Weingarten issues in the workplace are advised to contact counsel.

At this time, it is not known whether the Charging Parties in IBM Corp. will seek to appeal the Board’s decision to the Court of Appeals.

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