Non-Union Employers Regain the Right to Conduct Investigatory Interviews Without a Co-Worker Present

In IBM Corp. , the National Labor Relations Board ruled that non-union employers may lawfully refuse an employee's request to have a co-worker present during an investigatory interview that the employee reasonably believes could lead to discipline. [1] The Board's ruling is a huge victory for non-union employers.

The decision, released on June 15, 2004, overrules four years of precedent and is the fourth time in the past 23 years that the Board has changed positions on whether to extend Weingarten rights to non-union employees. [2] In Weingarten, the Supreme Court held that employees represented by a union have the right to have a union representative present during an investigatory interview that they reasonable believe could lead to discipline.

In Epilepsy Foundation[3] , decided just four years ago, the Board extended Weingarten to non-union employees. The Epilepsy Foundation decision left employers in a quandary, trying to balance the employee's right to have a co-worker present with the employer's obligation to conduct an effective and thorough investigation. Recognizing this dilemma, the Board determined in IBM Corp. that the employer's right to conduct prompt, efficient, confidential, and thorough workplace investigations outweighed the employee's right to have a co-worker present during the investigatory interview.

In IBM Corp., the company instituted an investigation after receiving a letter from a former employee containing allegations of harassment. The investigation included interviewing the alleged harassers. When the non-union interviewees requested to have a co-worker present during the interview, IBM refused and subsequently discharged the employees. The employees filed charges with the Board alleging that IBM violated their Weingarten rights. The Administrative Law Judge agreed.

The Board overruled the Administrative Law Judge and Epilepsy Foundation, reasoning that a change in the law was necessary due to the changing workplace environment, including increasing requirements to conduct workplace investigations, as well as new security considerations raised by incidents of national and workplace violence. To comply with these changes, the Board indicated that employers must be able to conduct "investigations in a thorough, sensitive, and confidential manner." [4] The Board also noted that co-workers, unlike union representatives, do not act on behalf of the entire workforce and their presence may compromise confidential information.

The IBM Corp. decision means that employers are free to conduct investigatory interviews with employees one-on-one. When conducting such investigations, non-union employers are not required to grant an employee's request to have a co-worker present, even if the employee has a reasonable belief that the investigation will lead to discipline.

If you have any questions about this article or any other workplace issue, please contact one of the following Quarles & Brady, LLP, attorneys: in Phoenix, Arizona, contact Dawn C. Valdivia at (602) 229-5291; in Milwaukee, Wisconsin, contact David B. Kern at (414) 277-5653; in Madison, Wisconsin, contact Fred Gants at (608) 283-2618; in Chicago, Illinois, contact John A. Klages at (312) 715-5060.