No Right to Presence of Coworkers During Investigatory Interviews In Nonunion Workplaces

Contents

Background

Post-WeingartenIBM Corp. Steps to Take

On June 16, 2004, the National Labor Relations Board (NLRB) ruled that nonunion employees do not have the right to the presence of a coworker during investigatory interviews. The presence of a coworker during an investigatory interview which the employee reasonably believes may result in disciplinary action is called a "Weingarten right." Under the new ruling, the NLRB found that employers must be allowed to conduct required investigations without the presence of an employee's coworker. The new ruling notes that the workplace environment has changed, and that the changes include "ever-increasing requirements to conduct workplace investigations, as well as new security concerns raised by incidents of national and workplace violence." The NLRB decision overrules its decision in Epilepsy Foundation of Northeast Ohio, 331 NLRB 676, which extended Weingarten rights to nonunion employees, and restores the 15 years of precedent established in Sears, Roebuck & Co. and E.I. DuPont & Co.

Background

Section 7 of the National Labor Relations Act, 29 U.S.C. 157 (1973) (NLRA) provides that "employees shall have the right ... to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection " An employee's activity that is both "concerted" in nature and pursued for union-related purposes aimed at collective bargaining or for other "mutual aid or protection" receives protection under the NLRA. Activity is "concerted" when undertaken with or without the authority of coworkers and not solely on the individual employee's behalf. Activity is pursued for "mutual aid or protection" when it "improve[s] terms and conditions of employment or otherwise improve[s] their lot as employees ..." Congress created the NLRB to protect rights afforded under the NLRA, particularly those rights provided under Section 8 regarding unfair labor practices. Section 8(a)(1) of the NLRA provides that "it shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section [7] "

From 1945 through 1975, the NLRB vacillated over the following issue. If an employer refused to permit the presence of a union representative during an investigatory interview constituting "concerted activity" undertaken for "mutual aid or protection," was that violative of Section 7 of the NLRA? Or was it a proper...