On June 9, 2004, a divided National Labor Relations Board (“NLRB”) ruled that employees who work in a nonunionized workplace do not have the right to have a coworker present at an investigatory interview that might lead to discipline. IBM Corp., 341 NLRB 148 (2004). The decision marks the fourth time in the past twenty-three years that the NLRB has reversed its course on the issue of whether the so-called Weingarten rights - named after a 1975 Supreme Court decision - are limited to unionized workplaces.

Weingarten and its progeny

The NLRB’s decision does not change the rules for unionized employers. In 1975, the Supreme Court held that a unionized employee’s right to engage in “protected concerted activity” under the National Labor Relations Act (“NLRA”) includes the right to have union representation at an investigatory interview. NLRB v. Weingarten, Inc., 420 U.S. 251 (1975). These rights are limited to situations where the employee reasonably anticipates disciplinary action, and specifically requests representation. They do not extend to day-to-day business meetings or interviews, and employers are not required to advise employees of this right in advance. Weingarten left unanswered the question of whether such rights applied to nonunion workers.

The NLRB first answered this question in 1982. Materials Research Corp., 262 NLRB 1010 (1982). Focusing on employees’ rights to act collectively, rather than on a union’s right to act as the employee’s bargaining representative, the NLRB granted Weingarten rights to nonunion workers. However, just three years later (after a change in the Board’s composition), the NLRB changed positions and held that that the right to representation during an investigatory interview does not exist where there is no certified or recognized union. Sears, Roebuck & Co., 274 NLRB 230 (1985). Distinguishing between union and nonunion workplaces, the NLRB concluded that an employer is entirely free to deal with its employees on an individual or group basis where no union is present. In 1988, after acknowledging that the NLRA did not compel such a result, the NLRB affirmed its decision that Weingarten rights only exist in union settings. E.I. Dupont & Co., 289 NLRB 627 (1988).

In 2000, a divided NLRB returned to its original position set forth in Materials Research Corp. Epilepsy Foundation of N.E. Ohio, 331 NLRB 676 (2000). The Board decided that its existing precedent conflicted with the Supreme Court’s decision in Weingarten. The Board reasoned that the proper interpretation of Weingarten focuses on the Court’s attention to an employee’s right to engage in concerted activities for the purpose of mutual aid and protection. Just as a union representative aids an employee by acting collectively to address the concern that the employer might impose unjust punishment, a coworker’s presence at an investigatory interview can serve the same purpose.

The IBM Corp. decision

In this case, a former contract employee alleged harassment by three nonunion IBM employees. These employees were terminated after IBM investigated the alleged harassment and conducted at least two rounds of employee interviews. The discharged employees filed an unfair labor practice charge after IBM denied their requests to have a coworker present during the second round of investigatory interviews. Based on Epilepsy Foundation, the Administrative Law Judge (“ALJ”) found that IBM violated the NLRA by denying the employees’ requests for the presence of a coworker.

On appeal, a majority of the Board reversed the ALJ’s decision and overruled Epilepsy Foundation. Although two members of the Board acknowledged that the NLRA could be interpreted to either extend or limit Weingarten rights, writing for the majority, they observed that policy considerations supported reversing Epilepsy Foundation. These members realized that changes in the workplace and recent security concerns have increased the need for workplace investigations and questioning employees in private. Specifically, the Board recognized that employers need to conduct “thorough, sensitive and confidential” investigations for a range of issues, including discrimination, harassment, workplace violence, corporate abuse, dishonesty, and real and threatened terrorist attacks.

The Board relied on several differences between nonunionized coworkers and union representatives. First, the presence of a coworker was less likely to safeguard the interests of all employees because they had no obligation to represent the interests of the entire workforce. Second, a coworker cannot redress the perceived imbalance of economic power between labor and management. Third, the Board discounted the nonunionized representative’s abilities to effectively represent the worker due to his or her lack of union affiliation and perceived unfamiliarity with the collective bargaining process. Fourth, a coworker cannot facilitate the interview process in the same way as a union representative. Finally, the Board concluded that Epilepsy Foundation infringed on an employer’s right to conduct a timely, thorough and confidential workplace investigation. Thus, limiting the Weingarten right to unionized employees “strikes the proper balance between the competing interests of the employer and employees.”

The decision also clarifies that a nonunion employee has the right to request the presence of a coworker at an investigatory interview without being disciplined for such a request. The Board merely held that a nonunion employer has no obligation to grant that request.

At this time, it is unknown whether this decision will be appealed to the appropriate U.S. Circuit Court of Appeals, or whether it ultimately will be decided by the Supreme Court. Moreover, given the NLRB’s history on this doctrine, it is uncertain if this decision will stand if the Board’s composition changes after the 2004 election.