Michael Giles

On June 9, 2004, the National Labor Relations Board reversed – yet again – its position on whether non-union employees have a right to representation in investigatory interviews. In IBM Corporation, the Board held that non-union employers are not required to grant employees’ requests to have co-workers present during investigatory interviews. This ruling, reversing the 2000 decision in Epilepsy Foundation of Northeast Ohio, is obviously good news for non-union employers. However, employers should remain vigilant because, in this area of the law, history has a way of repeating itself.

The right of representation for union employees has been relatively consistent since 1975, when the U.S. Supreme Court declared in the case of J. Weingarten that such a right existed. 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.

But the Board has flip-flopped as to whether non-union employees have the right to representation. In 1982, the Board held for the first time that they had such a right. Three years later, the Board reversed itself and held that Weingarten rights applied only in union settings. This remained the Board’s position, with only modifications, until 2000, when the Epilepsy Foundation decision was issued. Now, with the IBM decision, the Board is back to its pre-2000 position.

The IBM Board split along party lines, finding the following about co-workers: (1) they do not represent the interests of the entire workforce; (2) they cannot redress the imbalance of power between employers and employees; (3) they do not have the same skills as union representatives; and (4) their presence may compromise the confidentiality of information obtained during investigations.

In reaching its decision, the majority said it was not finding that non-union employees lack Section 7 rights, are incapable of representing their co-workers, or that their rights under the NLRA are endangered. Instead, the majority firmly stressed that its “only holding is that the non-union employer has no obligation to accede to the request [of an employee to have a co-worker present during an investigatory interview], i.e. to deal collectively with the employees.”

The IBM decision is good news, but employer celebration should be tempered by three critical observations about this decision. First, the majority stressed that its decision expresses a “permissible” interpretation of the NLRA. Second, the Board acknowledged that employment laws (particularly those addressing workplace discrimination and harassment), workplace violence, corporate scandals and national security interests since 9/11 have combined to make it more important than ever that employers be allowed to conduct investigations without undue interference. Third, the Board announced that its decision in this case was driven by its duty to “adapt the Act to changing patterns of industrial life” and its “special function of applying the general provisions of the Act to the complexities of industrial life.”

What happens when the nation’s industrial and legal climate or the Board’s composition changes? Stay tuned! 

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