For the third time in 22 years, the National Labor Relations Board changed its mind on whether employers must accede to requests from non-union employees to have co-workers present for investigatory interviews. As recently held in IBM Corp., 341 NLRB No. 148 (2004), the current view is that employers need not accede to such requests, though they may not retaliate against employees for asking.
This issue's tortured history begins with NLRB v. Weingarten, 420 U.S. 627 (1975). The Court held an employer violates section 8(1) of the NLRA, 29 U.S.C. § 158(a)(1), if it denies an employee’s request to have a union representative present at an investigatory interview which the employee reasonably believes could lead to discipline. Denial of such a request interferes with an employee’s section 7 rights, which give employees the right to engage in concerted activity for mutual aid and protection, and is an unfair labor practice under section 8(a)(1). The Court noted that requiring employers to accede to such requests served important NLRA policy goals: safeguarding the interest of the employee and the entire bargaining unit; eliminating a perceived power imbalance between labor and management; and providing knowledgeable assistance which may facilitate the investigation. The Court did not address non-union settings.
In Materials Research Corp., 262 NLRB 1010 (1982), the Board held that Weingarten rights extend to non-union employees, finding that Non-union employees have the same right as union employees to engage in concerted activity for mutual aid and protection. Three years later, the Board reversed itself in Sears Roebuck & Co., 274 NLRB 230 (1985), concluding that to award unrepresented employees the right to have a co-worker present would be inconsistent with the employer's right to deal directly with its employees. In E. I. DuPont & Co., 289 NLRB 627 (1988), the Board modified the Sears rationale, when it determined that extending Weingarten to non-union employees would be permissible under the NLRA, but, for policy reasons, should not be done.
In Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000) , the Board reversed itself again, holding that no statutory basis existed for having one rule for union employees and another rule for non-union employees. Now, in IBM Corp., the Board has returned to the rule of E. I. DuPont & Co. – the NLRA can permissibly be read either way, but for policy reasons Weingarten should not be extended to non-union employees. Reviewing the policy considerations in Weingarten, the Board concluded that they do not apply in non-union settings. Non-union co-workers do not represent the workforce's interests, only those of the employee. They cannot redress the power imbalance between employers and employees, nor do they have the same dispute resolution skills as union representatives. Further, co-workers may compromise the necessary confidentiality of investigations. Thus, the Board concluded, “an employer’s right to conduct prompt, efficient, thorough, and confidential workplace investigations” outweighs the right of non-union employees to have co-workers present during investigatory interviews.