It's About Time: NLRB Restores Non-Union Employers' Rights In Investigations

Wednesday, September 1, 2004 - 01:00
G. Roger King
Jennifer S. Browning

On June 15, 2004, the National Labor Relations Board ("NLRB" or "Board"), by a 3-2 margin in IBM Corporation, overruled current precedent that unionized and non-union employees alike have the right to a coworker present during an investigatory interview that the employee reasonably believes might result in discipline - otherwise known as Weingarten rights. With this change in the law, only unionized employees have this right. This commentary briefly discusses the history of Weingarten rights, dissects the holding and pertinent rationale of IBM Corporation, and comments on policy and practical considerations that support this decision, which expressly overrules Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000) cert. denied, 536 U.S. 904 (2002).

An employee's right to have a representative present during an investigatory interview began nearly 30 years ago with the Supreme Court's decision in NLRB v. J. Weingarten, 420 U.S. 251 (1975), where the Court held that a unionized employer could not deny an employee's request for representation in an interview that he reasonably believed could result in discipline. The Court based the Weingarten decision on Sections 7 and 9 of the National Labor Relations Act (the "Act"). Section 9 allows employees to petition for union representation and hold union elections. It also prohibits employers from dealing directly with unionized employees regarding the terms and conditions of employment. National Labor Relations Act § 9, 29 U.S.C. § 159(a), (c) (1994). Section 7 of the Act allows employees, whether unionized or not, to engage in "concerted [protected] activities for the [goal] of. . . mutual aid or protection." National Labor Relations Act § 7, 29 U.S.C. § 157 (1994). The rationale underlying the Weingarten holding was: (1) the union representative is a safeguard of the interests of the whole group of unionized/represented employees; (2) having a lone employee represent himself or herself perpetuates the inequalities that the Act sought to redress; (3) a knowledgeable union representative can protect the employee and also speed up the investigatory process for the employer; and (4) since most labor agreements already called for such representation, it was consistent with current practice. However, Weingarten did not address whether this right of representation extended to non-union workplaces.

Subsequently, the Board had answered (or so it thought) this question three different times before deciding IBM Corporation - each time coming to a different conclusion. The most recent pre-IBM turning on this winding road was Epilepsy Foundation, where the Board held that non-unionized employees are entitled to representation during investigatory interviews that might reasonably lead to discipline. The Board rejected the rationale in I.E. DuPont & Co., 289 NLRB 627 (1988) that coworker representatives in non-union settings do not represent the entire workforce; that they lack the ability to provide effective representation; and that an employee is left without a chance to tell his story if the employer decides to forego an interview prior to discipline. Further, the Board in Epilepsy Foundation erroneously relied upon one of the premises of the Weingarten decision - that an employee's representational right did not interfere with a legitimate employer's prerogative because an employer could forego an investigatory interview if it decided that it did not wish to allow an employee representative to take part in the interview.

However, in some circumstances, employers are not free to discipline employees without first conducting an extensive investigation of a workplace incident, including interviewing all individuals potentially involved in the matter. For example, OSHA requires employers to investigate and interview all individuals potentially involved in matters relating to reports of incidents involving release of hazardous chemicals in the workplace. Further, an employer has an affirmative obligation under federal and some state anti-discrimination statutes to prevent and remedy sexual harassment and other forms of discrimination, which imposes a duty on employers upon receiving a report of harassment, to complete a comprehensive investigation.

Despite these apparent conflicts for non-unionized employers, between complying with Epilepsy Foundation and other legal obligations, it has been unlawful for a non-unionized employer to refuse to honor the request of an employee to have a coworker present during an investigatory interview that the employee reasonably believes may lead to discipline. The only two exceptions to this rule were a meeting where the employee was simply informed of a predetermined disciplinary measure, or a meeting where the employer assured the employee that disciplinary action would not result.

During the past four years, despite strenuous arguments on behalf of employers advocating that the Board revisit the merits of Epilepsy Foundation, the Board has declined. For example, in Terracon, Inc. 339 NLRB No. 35 (June 6, 2003), Chairman Battista and Member Acosta stated that "given the posture of this case, we find it unnecessary to pass on the merits of Epilepsy Foundation." Id. at *2. Again, in IBEW, Local 236, 339 NLRB No. 156 (Aug. 21, 2003), the Board noted, "[v]arious amici curiae urge the Board to overrule Epilepsy Foundation. In view of the disposition herein, we find it unnecessary to address those contentions." Id. at *7. However, in IBM Corporation, the Board finally reconsidered this issue, this time finding that Weingarten rights do not apply to non-unionized employers.

Features Of A Contemporary Workplace Make Epilepsy Foundation Untenable Now

In IBM Corporation, management interviewed three employees on two separate occasions relating to a sexual harassment complaint received by a former employee. During the first interview, none of the interviewed employees requested to have a coworker present. However, prior to the second interview, each employee interviewed requested the presence of a coworker, but the employer denied the requests. All three employees, who were terminated approximately a month after the interview, charged the employer with violating their Weingarten rights pursuant to Epilepsy Foundation. Id. at 4.

The Board accepted IBM Corporation's appeal from the administrative law judge's ruling that IBM had violated the Act by denying the three employees their Weingarten rights, and addressed whether Epilepsy Foundation should continue as the law. In reaching its decision to overrule Epilepsy Foundation, the Board noted:

"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."

Id. at 12 (emphasis added). In overruling Epilepsy Foundation and returning to its position in DuPont, that non-unionized employees do not have Weingarten rights, the Board acknowledged that it has a duty to "adapt the Act to changing patterns of industrial life . . . ." Id. at 18.

Both Practical And Policy Considerations Support The IBM Corporation Decision

There are practical and policy reasons to support the Board's decision in IBM Corporation, including:

1. Non-unionized employees are aligned or separated on many different sides of the various day-to-day employment issues that arise in a given workplace, such that nonbiased, effective representation is questionable. Each employee pursues his or her own individual interests to varying degrees, and in some cases, an employee representative may benefit from, or be detrimentally affected by, the discipline of another employee. Assuming that a randomly selected employee is going to effectively represent the collective rights of all employees in a single disciplinary interview is without any factual foundation, and in all likelihood, an erroneous conclusion.

2. The goal of delivering mutual aid and protection for employees collectively by a randomly selected co-employee is illusory at best. Instead, it is highly probable that employee representatives will differ among different individual employee interviews in non-unionized settings, providing little or no repository of institutional knowledge about how similar incidents were handled in the past or what type of discipline other employees received. Thus, delivering mutual aid and protection in the interest of other employees in the workplace is unlikely.

3. The lack of confidentiality during investigatory interviews may compromise the integrity of the investigation. For example, when employees are allowed to have a coworker present, an investigated harasser, a friend of the harasser, or another harasser, may be the representative of the employee being interviewed. During the interview, the objectives and salient issues of the investigation would be revealed to the co-employee representative, allowing such employee to adjust his or her story to maximum advantage.

4. Various privacy statutes also impose considerable burdens on employers facing Weingarten situations. Governmental entities, for example, restrict information that can be shared with coworkers in the substance abuse area and regarding health concerns of employees in light of the HIPAA regulations. The presence of a co-employee representative during any investigatory interview involving such issues may place the employer in serious danger of violating these privacy statutes and regulations.

5. Representational rights also pose a great challenge in the context of wrongful termination. Prior to IBM Corporation, an employer could choose to forego a comprehensive investigation before terminating an employee in order to avoid having the terminated employee bring a coworker to the interview. This same employer, however, could then be subject to a wrongful termination suit with possible compensatory and punitive damages far in excess of the reinstatement and backpay that a bargaining unit member would receive if the discharge was not upheld.

In sum, employees in a non-union workplace no longer have a right to have another employee present for investigatory or counseling interviews in which the employee reasonably believes may result in discipline. This does not mean that non-union employers can now disregard the Act. Employees may still avail themselves of the Act if they engage in other "concerted activities" for "mutual aid and protection." Managers and supervisors should be trained to recognize situations that could involve protected concerted activities and be instructed on how to deal with those situations appropriately. Moreover, employers should not get too comfortable with the Board's new position that non-unionized employees do not possess Weingarten rights. Indeed, the Board has left the door open to change its interpretation of Section 7 of the Act on this issue, and continued changes in the workplace and national climate may lead the Board to repeat history and reverse its view once again in the future.

G. Roger King is a Partner and Jennifer S. Browning an Associate in the Columbus office of Jones Day. The opinions here expressed are theirs alone.

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