Labor Logic

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Introduction

John D. Finerty, Jr.

Union employees have the right to have a union representative present during any employer interview that may lead to discipline of the employee. Do non-union employees have a similar right to have co-workers present during disciplinary interviews?

The answer to that question today is no. Between 2000 and 2004, however, the answer was yes; before that, the answer was no. Suffice to say, the National Labor Relations Board has changed its position on whether non-union employees have the right to have co-workers present during disciplinary interviews, also known as Weingarten rights, a few times over the years. The Labor Board recently changed its mind again.

On June 15, 2004, the NLRB overruled its decision in Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000), and held that a non-union employee does not have the right to have a co-worker present at an investigatory interview that the employee reasonably believes might result in discipline. The case, IBM Corp., 341 NLRB No. 148 (2004), is the fourth time in the past 23 years that the Board has changed positions on whether Weingarten rights are limited to unionized workplaces.

The Union v. Non-Union Distinction

The Board’s decision in IBM did not change the rules for unionized employers. In the Weingarten case, the Supreme Court held that an employer violates Section 8(a)(1) of the National Labor Relations Act by denying an employee’s request to have a union representative present at an investigatory interview which the employee reasonably believes might result in disciplinary action. The sole issue in IBM was whether IBM violated Section 8(a)(1) by denying the requests of its nonunion employees to have a coworker present during investigatory interviews. By a vote of 3-2, the Board held that Weingarten rights do not apply in a non-union setting.

The Board recognized that changes in employment laws and recent security concerns require that investigations into matters like substance abuse, improper internet use, dishonesty, threats, harassment and discrimination be conducted “in a thorough, sensitive, and confidential manner.” Indeed, failure to do so can expose an employer to charges that it did not conduct a fair investigation or that unfair discipline was imposed based on incomplete information.

Confidentiality is Important

According to the Board, the presence of a co-worker increases the possibility that information will not be kept confidential, reduces the chance that the employer will get the whole truth, and increases the likelihood that employees with information about sensitive subjects will not come forward. The Board held that the right of a non-union employee to a coworker’s presence is “outweighed by an employer’s right to conduct prompt, efficient, thorough, and confidential workplace investigations.”

These concerns may exist when the presence of a union representative is required under Weingarten during an investigation in a unionized setting. The Board addressed that issue by noting that union representatives have “fiduciary obligations” and “by virtue of their legal duty of fair representation, may not, in bad faith, reveal or misuse the information obtained in an employee interview.” That holding will likely inspire litigation over the nature of a union representative’s duty to maintain confidentiality and whether an employer has the right to insist on a confidentiality agreement before allowing a union representative to participate in an investigatory meeting.

Retaliation Prohibited in Any Setting

The Board’s decision in IBM also does not change or limit the right of a non-union employee to seek the assistance of a fellow employee. That is, under the National Labor Relations Act, an employee cannot be disciplined for requesting the presence of a co-worker in an investigatory meeting. The Board simply held that a non-union employer has no obligation to grant that request.

Despite this ruling, non-union employers should tread lightly when denying employee requests to have a co-worker present during disciplinary interviews. Because the Board has changed its position on this subject four times in the past, this is still an unsettled area of law. The Board could reverse itself yet again after the November elections if the composition of the Board were to change.

For more information, please contact John D. Finerty, Jr. at [email protected] or (414) 225-8269, Jonathan O. Levine at [email protected] or (414) 225-4937, or Scott C. Baumbach at [email protected] or (262) 956-6543.