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NLRB Reverses Epilepsy Foundation: Non-Union Employees No Longer Entitled to Representation in an Investigatory Interview

By Henry E. Farber

The Republican-dominated National Labor Relations Board (NLRB) is now fully flexing its muscles. In a decision released June 15, 2004, IBM Corp., the NLRB reversed a decision of the Clinton Board and rejected the principle that non-union employees are entitled to have a co-worker attend investigatory interviews. The right to have a witness at such an interview is now confined to unionized employees.

This is not the first time the NLRB has flip-flopped on this issue. In 1975, in NLRB v. J. Weingarten, the U.S. Supreme Court decided that union employees being interviewed about possible misconduct had the right to request the presence of a union representative at the interview. This Weingarten right applied where the employee reasonably believed he or she could be disciplined for the conduct being investigated. If the employee requested, the employer was required to wait a reasonable time for a union representative and provide a short time for the employee and union representative to confer. The union representative was permitted to act as a witness, clarify questions, and act as an advocate for the employee, but could not disrupt the interview. The Supreme Court held that if the employer preferred, it could reject the request and thereafter not interview the employee. However, most employers prefer to proceed with the interview in order to have complete information before making a disciplinary decision.

In 1982, the NLRB decided that non-union employees had the same Weingarten right and could ask for the presence of a co-worker at an investigatory interview. Just three years later, the Board reversed course and concluded that Weingarten rights did not apply unless there was a recognized or certified union. In 2000, the appointees of President Clinton issued the decision in Epilepsy Foundation of Northeast Ohio, once again giving Weingarten rights to non-union employees. That decision was upheld by a federal appellate court as a permissible, but not required, interpretation of the National Labor Relations Act. Now, the NLRB has reversed that decision yet again.

Not surprisingly, IBM Corp., is a split decision. Two of the Republican members, Chairman Robert Battista and Member Ronald Meisburg, concluded that both positions are reasonable interpretations of the National Labor Relations Act, and that the NLRA does not require either result. They concluded, however, that it is better national labor policy to not extend Weingarten rights to non-union employees. Battista and Meisburg observed that employers rely more heavily on internal investigations now, particularly with respect to sexual harassment and workplace violence issues. They believed that an untrained co-worker could interfere with that investigation, fail to represent the interests of a group of employees, fail to address the balance of power between employer and employee, and be more likely to breach confidentiality than a trained union official would. They also pointed out that the requested co-worker might actually be a participant in the incident.

Member Peter Schaumber, also a Republican, went a step further. He agreed with the policy rationale of his colleagues, but also found that the NLRA does not grant non-union workers Weingarten rights. He concluded that the Epilepsy Foundation decision was not justified by the statute.

The two Democratic members, Dennis Walsh and Wilma Liebman, dissented. They argued strenuously to retain the Epilepsy Foundation decision, and also urged their colleagues to consider the situations on a case-by-case basis.

What should you do now?

This decision allows employers to deny requests by non-union employees to allow co-workers to attend investigatory interviews. Given this legal protection, we recommend that you decline such requests unless special circumstances suggest otherwise. As the Board observed in IBM. Corp., the presence of a co-worker at an interview could compromise the confidentiality of information and interfere with an investigation. Also, you should be careful about establishing any precedent that will apply to future investigations by allowing a co-worker to be present at an interview. If some unique circumstances arise, you should consult with counsel about the legal implications before opening the door to an employee’s co-worker.

Undoubtedly, we have not heard the last of this issue. The decision may be appealed to the federal courts again, but the rationale of the majority is designed to protect the ruling from reversal by the courts. If the Board changes in composition after the 2004 presidential election, we expect the issue to be reconsidered. For now, however, a request by a non-union employee for a co-worker to attend an investigatory interview may be denied.

Some important points in connection with the decision:

1. The request for a co-worker is still probably a protected request. This means that while an employer may deny the request, it cannot retaliate against the employee for making it. However, if a non-union employee refuses a directive to participate in an investigatory interview, the employee may be disciplined for insubordination as well as the underlying misconduct under investigation.
   
   
2. Weingarten rights are still fully in place for union employees, and the publicity around this decision may increase the number of requests for union representatives to attend interviews. Union employees must request the presence of a union representative; employers are not required to advise employees of the Weingarten rights.
   
   
3. The Weingarten right never applied to meetings at which discipline is being given, only to investigatory interviews.
   
   
4. Public sector employers may have different rules and responsibilities, and should check with counsel before refusing a request by a non-union employee for a co-worker to attend an investigatory interview.
   

For further information, contact:

Henry E. Farber Bellevue, WA (425) 646-6138 henryfarber@dwt.com

This Employment Law Advisory is a publication of the Employment Law Department of Davis Wright Tremaine LLP. Our purpose in publishing this Advisory is to inform our clients and friends of recent developments in employment law. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations.

Copyright © 2004, Davis Wright Tremaine LLP.

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