In 1975, the U.S. Supreme Court in the case of National Labor Relations Review Board (NLRB) v. Weingarten gave workers the right to bring a union representative to an investigatory interview conducted by the employer. Following that decision, the NLRB flip-flopped on whether nonunion workers also had these so-called “Weingarten rights”—specifically, whether they could have a fellow employee accompany them to a meeting they believed could have disciplinary consequences. And finally, in 2000, the NLRB ruled that they did. But now, in a reversal that should ease your workplace investigation obligations, the NLRB has said that Weingarten rights don’t apply in nonunion workplaces.
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Nonunion Workers’ Requests for Representation Denied
The new case was sparked when IBM Corp. rejected requests by three nonunion employees to have a co-worker present during interviews to investigate harassment the employees had allegedly engaged in. The workers filed unfair labor practice charges, arguing that IBM violated their Weingarten rights, and an administrative law judge ruled in their favor.
NLRB Says Representation Right Limited to Union Employees
But on reviewing this matter, the NLRB ruled that Weingarten rights are limited to unionized employees only. The NLRB pointed out that sensitive employer investigations require discretion and confidentiality, and employers are now investigating a wider range of these delicate situations than ever before, from harassment to workplace security threats.
While union representatives are legally prohibited from revealing or misusing information obtained in an investigatory interview, co-workers are under no similar confidentiality constraints, the NLRB said. Also, said the NLRB, a co-worker’s presence might inhibit the targeted employee from candidly answering the employer’s questions.
Thus, IBM was not required to grant the employees’ request to have a co-worker present during the harassment investigation interviews, and their complaint was dismissed.
Practical Impact
Given that the NLRB has reversed itself several times on this issue, it remains to be seen whether this politically appointed board will stand by this decision in future cases. In the meantime, the latest ruling is good news for employers with nonunion workplaces. It means you don’t have to grant a nonunion employee’s request to have a co-worker present at an investigatory interview. Keep in mind, however, that a nonunion employee can still make such a request, and you cannot discipline them for doing so.
Also, the NLRB’s new decision doesn’t affect the existing Weingarten rights of union workers to bring a representative to an investigatory meeting. For more information on handling a union employee’s request for representation in this situation.