SC Lawyer, Sept. 2004, #5. Deja Vu all over again: NLRB decides nonunion employees have no right to representation during investigatory interview.

AuthorBy Paul H. Derrick

South Carolina Lawyer

2004.

SC Lawyer, Sept. 2004, #5.

Deja Vu all over again: NLRB decides nonunion employees have no right to representation during investigatory interview

South Carolina LawyerSeptember 2004Deja Vu all over again: NLRB decides nonunion employees have no right to representation during investigatory interviewBy Paul H. DerrickThe right to representation is limited to situations in which an employee specifically requests representation. An employer is not required to advise the employee of this right in advance, and the right is triggered only in the case of investigatory meetings that may result in disciplinary action, not to meetings where, for example, the employer merely communicates a decision regarding a disciplinary matter.

The old adage that "nothing is certain but uncertainty" must have been coined by someone watching the National Labor Relations Board in action. For the fourth time in 23 years, the agency has reversed itself in a decision involving the representation rights of nonunion employees. In a 3-2 decision released on June 15, 2004 (IBM Corp., 341 NLRB No. 148), the Board ruled that nonunion employees do not have the right to have a representative present during an interview that might reasonably lead to disciplinary action. The IBM Corp. decision overrules the Labor Board's 2000 decision in Epilepsy Foundation of Northeast Ohio, 331 NLRB 676, which extended so-called Weingarten rights to all employees, regardless of their union status. (Employee Investigations: Represen- tation Rights Extended to Nonunion Employees, South Carolina Lawyer, Jan./Feb. 2001).

A brief review

The NLRB was created by Congress to regulate the arena of labor-management relations. Its jurisdiction extends to most non-governmental employers, whether unionized or not, whose operations "affect commerce." While the dollar volume of business required to trigger the Board's jurisdiction varies among industries and professions, the thresholds generally are so low that all but the most localized enterprises will fall under the authority of the Board. Thus, the agency's reach encompasses everything from retail businesses to educational institutions to law firms, large and small alike.

In 1975, the U.S. Supreme Court upheld a decision by the Board that employees represented by a union have a right, protected by § 7 of the...

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