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

• Author: By 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 National Labor Relations Act, to insist upon union representation during an investigatory interview conducted by their employer, provided the employee "reasonably believes" the interview "might result in disciplinary action." NLRB v. J. Weingarten Inc., 420 U.S. 251 (1975). The Supreme Court explained that this right arises from the Act's "guarantee of the right of employees to act in concert for mutual aid and protection." The 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.

Since that 1975 decision, the Board has been anything but decisive about whether Weingarten rights apply to employees who are not represented by a union. In 1982, it decided Materials Research Corporation, 262 NLRB 1010, and held that Weingarten rights did apply to nonunion employees. Two years later, however, in Sears Roebuck & Co., 274 NLRB 230, the Board reversed its position and held nonunion employees were not entitled to Weingarten rights. That remained the law for more than a decade until the Epilepsy Foundation decision came along in 2000.

In that case, the Labor Board concluded that its earlier rulings were inconsistent with the Supreme Court's rationale in Weingarten and reasoned that Weingarten rights should be extended to all employees, regardless of whether they are represented by a union.

The IBM Corp. decision

IBM Corp. involved three nonunion employees who alleged they requested and were denied co-worker representation during investigatory interviews stemming from a complaint about harassment in the workplace. The employees were subsequently terminated from employment and, predictably, filed unfair labor practice charges against IBM challenging the denial of representation during the investigatory interviews. The administrative law judge who heard their case ruled that IBM violated the Act by denying the requested coworker representation.

In reversing the ALJ, the Board determined that the employees did not have a right to have a co-worker present at an investigatory interview that might lead to discipline. The Board's decision largely was based on policy issues underlying the needs of employers to conduct confidential and discreet investigatory interviews in the workplace. The Board noted, "Some employers, faced with security concerns that are an out-growth of the troubled times in which we live, may seek to question employees on a private basis." The Board specifically recognized that employers must be able to conduct fact-finding interviews in "sensitive situations" and that the confidentiality of such interviews cannot be compromised. It concluded, "[O]ur consideration of these features of the contemporary workplace leads us to conclude that an employer must be allowed to conduct its required investigations in a thorough, sensitive, and confidential manner. This can best be accomplished by permitting an employer in a nonunion setting to investigate an employee without the presence of a co-worker."

In addition to policy considerations regarding the contemporary workplace, the Board held that the extension of Weingarten rights to nonunion employees is inappropriate because of the dissimilarities between unionized and nonunionized workforces. For example, in Weingarten, the Court found that the presence of a union representative at an investigatory interview is essential to the protection of the interests of the bargaining unit as a whole. In its view, the presence of a union representative at such interviews helps redress the imbalance of power between employers and employees. In IBM Corp., the Board indicated that the same rationale does not hold true for a nonunion workforce, where there is no bargaining representative and no one has either the right or obligation to oversee the interests of the entire workforce. Moreover, co-workers in a nonunion setting are less able to redress an "imbalance of power" due to the fact that they have no collective bargaining agreement or bargaining unit from which to derive authority. The Board also recognized that nonunion co-workers lack the same level of skill to elicit facts and facilitate investigatory interviews that experienced union representatives have. Thus, they are unlikely to achieve the purposes and goals that the Court found significant in Weingarten.

The Board in IBM Corp. did take care to point out that even nonunion employees do have the right to request the presence of a co-worker at an investigatory interview and that they may not be disciplined for making such a request. The state of the law, at least for the moment, however, is that employers are under no obligation to accede to that request where employees are not represented by a union.

This latest ruling by the NLRB is likely to have its most widespread impact in states such as South Carolina. Although Weingarten rights still apply to unionized employees, there are relatively few unionized businesses in the Palmetto State, where representation rates are among the lowest in the nation. Thus, for the overwhelming majority of employers here, the IBM Corp. decision effectively gives management greater flexibility to determine the timing and scope of investigations covering a broad range of workplace issues without the constraint of having to allow third parties into the process.

Paul H. Derrick is a partner with Jackson Lewis LLP in Greenville and represents employers in matters involving labor, employment, benefits and immigration law.

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