Employer Bulletin No. 326
July 19, 2000

Right to Representation at Investigatory Interview is Extended to Non-Union Employees

In a sharply-divided decision, the three democrat Members of the National Labor Relations Board ruled last week that employees in non-union settings are entitled upon request to have a co-worker present at any investigatory interview with management which they believe may lead to disciplinary action against them.  Epilepsy Foundation of N.E. Ohio, 331 NLRB 1992 (July 10, 2000).  It applies to any employee covered by the National Labor Relations Act, including not only production and maintenance employees, drivers and service workers, but office clerical, sales, technical and professional employees as well.  Only supervisory and managerial personnel are excluded from the Act's definition of "employees."    The decision was prominently published in USA Today and The Wall Street Journal a few days later and has raised a number of client inquiries and concerns.  What the Board has done is cause the law to revert back to a decision known as Materials Research, made by earlier democrat majority Members in July 1982.  The ramifications of that case and a companion case were discussed in our Client Bulletin No. 278 at that time.  The bulletin is enclosed for your reference and guidance.

As the prior bulletin makes plain, so-called "Weingarten" rights to representation have applied in the union sector since a 1975 Supreme Court decision.  In 1982, the Board's decision in Pacific Telephone & Telegraph Company expanded upon union representation rights to include a requirement that the employer offer information on the subject matter of the proposed interview, as well as an opportunity for prior consultation with the union representative.  This case was reviewed by the Ninth Circuit Court of Appeals and the Board's Order was enforced.  We believe that the Board will now extend the same obligations in the non-union sector, not only requiring the presence of the co-worker representative upon the employee's request, but also requiring the employer to provide information about the nature of the investigation and an opportunity for prior consultation with the co-employee.  However, the new decision does not require an employer to offer co-worker representation, nor do our clients have to apprise the employee under investigation of his/her rights to representation subject matter disclosure, or consultation.  In this regard, we direct you to the questions and answers addressed in our Client Bulletin No. 278.

As our clients are well aware, there has been a dramatic change in the obligations of employers to make prompt and thorough investigations in recent years.  Where an employer is dealing with the complaint of sex, race, religion or national origin harassment, it must conduct a prompt and effective investigation.  Should the accused be interviewed and demand the presence of a co-worker, questions such as confidentiality, defamation, extent of information to be provided and other related issues may become difficult legal issues requiring careful evaluation.  Not only will the many forms of alleged harassment require investigation that may lead to disciplinary action, but the same principles may apply to investigations regarding workplace violence, environmental compliance, and OSHA-related safety rule enforcement.  The scope of the Epilepsy Foundation is untested.  One of the two dissenting NLRB Members expressed this concern:

Moreover, by grafting the representational rights of the unionized setting on to the nonunion workplace, employers who are legitimately pursuing investigations of employee conduct will face an unknown trip-wire placed there by the Board.  Employers in a nonunion setting will generally be completely unaware of this right to representation that the Board is imposing on them.  The work-place has become a garden of litigation and the Board is adding another cause of action to flower therein, but hiding in the weeds.

We agree with the dissenting Member, but the Board's decision in Epilepsy Foundation is the current majority view on the issue and must be considered controlling authority until reviewed by a circuit court.  Many of our clients have experienced the complexity of interaction between the many and confused federal laws governing workplace allegations of discrimination, and have had to deal with conflicting regulatory compliance problems. The requirements of Title VII of the Civil Rights Act and Section 7 of the National Labor Relations Act are not always distinct and separate, and it appears our clients' litigation avoidance efforts will continue to be tested in the months and years ahead.