NLRB RULES WEINGARTEN RIGHTS
NO LONGER APPLICABLE TO NONUNION EMPLOYEES

by William H. Pickering

In an extremely important ruling for nonunion employers, the National Labor Relations Board (NLRB) has held that employees in a nonunion setting are not entitled to have coworkers present during investigatory interviews conducted by management.  See IBM Corporation, 341 NLRB No. 148 (June 9, 2004).  The NLRB specifically overruled its controversial decision in Epilepsy Foundation of Northeast Ohio in which the NLRB had stated that so called “Weingarten rights” applied to investigatory interviews of nonunion employees that might result in disciplinary action. 

In IBM Corporation, the employer investigated some allegations of harassment and, in the process, interviewed three employees.  The employees’ requests to have coworkers present during the interviews were denied, and all three employees were discharged approximately one month after the interviews took place.  The employees then filed a complaint with the NLRB alleging that the employer violated Section 8(a)(1) of the National Labor Relations Act by denying their requests for coworker representation. 

The case was heard by an administrative law judge who analyzed it under the NLRB’s 2000 decision in Epilepsy Foundation.  In that case, the NLRB had reversed longstanding precedent in extending Weingarten rights to nonunion employees.  Applying the Epilepsy Foundation case, the administrative law judge held that IBM violated the Act by denying the employees’ requests for coworker representation during investigatory interviews which the employees reasonably believed could result in discipline. 

IBM appealed the administrative law judge’s decision to the NLRB which overruled its earlier decision in Epilepsy Foundation and dismissed the employees’ complaint.  Interestingly, the NLRB began its analysis by finding that the parties' conflicting positions as to whether Weingarten rights were available in a nonunion setting were both permissible interpretations of the Act and that it was thus within the NLRB’s discretion to determine which interpretation was appropriate.  The NLRB stated:

Our reexamination of Epilepsy Foundation leads us to conclude that the policy considerations supporting that decision do not warrant, particularly at this time, adherence to the holding in Epilepsy Foundation.  In recent years, there have been many changes in the workplace environment, including ever-increasing requirements to conduct workplace investigations, as well as new security concerns raised by incidents of national and workplace violence.

Our consideration of these features of the contemporary workplace leads us to conclude that an employer must be allowed to conduct its required investigations in a thorough, sensitive, and confidential manner.  This can best be accomplished by permitting an employer in a nonunion setting to investigate an employee without the presence of a coworker. 

The NLRB then analyzed the relevant policy considerations and concluded that, in a nonunion setting:  (1) coworkers do not represent the interests of the entire work force; (2) coworkers do not have the ability to redress the imbalance of power between employers and employees since they do not have the force of a bargaining unit behind them; (3) coworkers do not have the same skills as union representatives and may, in addition, be “coconspirators” in the incidents being investigated; and (4) the presence of a coworker may compromise the confidentiality of information.  The NLRB particularly noted that employers have the legal obligation to provide their workers with safe and secure workplace environments and that a “relatively new fact of industrial life” is the need for employers to conduct various types of investigations regarding matters occurring in the workplace, including sexual harassment, drug use and the potential for violence.  The NLRB stated that employer investigations into these matters required both discretion and confidentiality which could be compromised by the presence of coworkers during investigatory interviews.  The NLRB concluded that, on balance, these policy considerations required that Epilepsy Foundation be overruled.

The IBM Corporation case was a 3 to 2 decision with Board members Liebman and Walsh writing a lengthy and strongly worded dissenting opinion claiming that American workers had been “stripped of a right integral to workplace democracy.”  The case may still be appealed to the United States Court of Appeals, but the Court will be obligated to affirm the NLRB’s interpretation of the Act if it is supported by substantial evidence and represents a permissible construction of the statute.  Unless and until IBM Corporation is reversed, the decision represents the majority view of the NLRB. 

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