NLRB Reverses Course Again: Weingarten Rights Do Not Extend to Non-Union Workplaces

For the third time in the last 23 years, the National Labor Relations Board (the “NLRB”) has changed its position on whether non-unionized employees are entitled to so-called “Weingarten” rights — the right to have a co-worker present during an investigatory interview that may lead to discipline. On June 9, 2004, the NLRB, in a 3-2 decision, ruled that the right afforded to unionized employees to have a union representative present during such an interview does not apply to employees in non-union workplaces. IBM Corp., 341 N.L.R.B. No. 148 (2004). In so ruling, the NLRB overturned its contrary decision rendered only four years ago in Epilepsy Foundation of Northeast Ohio, 331 N.L.R.B. 676 (2000).

In its seminal decision, NLRB v. J. Weingarten, 420 U.S. 251 (1975), the U.S. Supreme Court ruled that, under the National Labor Relations Act (the “NLRA”), a unionized employee is entitled to have a union representative present during an investigatory interview that the employee reasonably believes might result in discipline. Over the past thirty years, the NLRB has grappled with the question whether to extend this Weingarten right to non-union workplaces. The NLRB originally took the position that the Weingarten right applies equally to employees in non-unionized settings. Materials Research Corp., 262 N.L.R.B. 1010 (1982). Three years later, however, the NLRB abandoned this position and limited Weingarten to unionized employees. Sears, Roebuck & Co., 274 N.L.R.B. 230 (1985). Shortly thereafter, the NLRB reaffirmed its position, but acknowledged that its original position set forth in Material Research was not necessarily inconsistent with the purposes of the NLRA. E. I. Dupont & Co., 289 N.L.R.B. 627 (1988). Dupont remained the law until 2000 when it was overruled by the NLRB in Epilepsy Foundation. Returning to its original position that the Weingarten right applies equally to non-union employees, the NLRB reasoned that a non-union employee’s request to have a co-worker present at an investigatory interview constitutes activity for mutual aid or protection in much the same way as a unionized employee’s request for the presence of a union representative.

In IBM Corp., the NLRB once again reversed course. The NLRB ruled that IBM did not violate the NLRA by denying three employees’ requests to have a co-worker present while they were interviewed about a complaint of harassment lodged by a former employee. The investigation ultimately led to the employees’ terminations. The employees subsequently filed unfair labor practices charges alleging that IBM violated Section 8(a)(1) of the NLRA by denying them their Weingarten right to have a co-worker present during the investigatory interviews. Reversing the Administrative Law Judge’s decision finding a violation, the NLRB concluded that the demands of the contemporary workplace warrant a reconsideration of Epilepsy Foundation. The NLRB observed that “[a] relatively new fact of industrial life is the need for employers to conduct all kinds of investigations of matters occurring in the workplace” in response to both new workplace laws and as a response to new security concerns raised by terrorist attacks on our country. Acknowledging that an employer “must be allowed to conduct its required investigations in a thorough, sensitive, and confidential manner,” the NLRB concluded that this right must prevail over an employee’s desire to have a co-worker present during an investigatory interview. The NLRB clarified that a non-union employee may still request the presence of a co-worker during an investigatory interview, but that an employer has no obligation to accede to this request.

IBM Corp. is a welcome decision for non-union employers. These employers — at least for now — are again free to deal with their employees individually and without the concern that the confidentiality of their workplace investigations will be compromised by the presence of a co-worker.