On June 9, 2004, the National Labor Relations Board ("NLRB") gave employers a welcome victory by holding that non-union employees do not have the right to have a representative or co-worker present during a workplace investigation, in IBM Corp., 341 NLRB No. 148 (June 9, 2004). 
 
Union employees have long since had the right to have a representative or co-worker present during a workplace investigation that might lead to disciplinary action against the employee.  The doctrine is referred to as the Weingarten right, which is the name of the Supreme Court case that ruled union employees had this right.  In a somewhat shocking move, four years ago the NLRB held that the right to have a co-worker present extended to non-union employees where an investigation might reasonably lead to disciplinary action against the employee, in Epilepsy Foundation of Northeast Ohio. 
 
In IBM, three employees were interviewed in connection with a workplace investigation involving harassment claims. Non-union employees claimed their rights under the National Labor Relations Act ("NLRA") were violated when IBM refused to allow them to have a co-worker present during a second interview relating to the harassment claims.  Ultimately all three employees were fired and, of course, litigation ensued.  After the Administrative Law Judge ruled in favor of the employee, IBM appealed the decision to the NLRB.  In a 3 to 2 decision the NLRB overruled Epilepsy Foundation. 
 
In setting up its rationale for the decision, the NLRB made an interesting reference to 9/11 and noted that "[w]e are especially cognizant of the rise in the number of instances of workplace violence, as well as the increase in the number of incidents of corporate abuse and fiduciary lapses.  Further, because of the events of September 11, 2001 and their aftermath, we must now take into account the presence of both real and threatened terrorist attacks.  Because of these events, the policy considerations expressed in DuPont have taken on a new vitality…" The NLRB then cited the following policy reasons in support of denying Weingarten rights in non-unionized settings:  1) coworkers do not represent the entire workforce; therefore no one is present to safeguard the interests of the entire bargaining unit;  2) coworkers cannot redress the imbalance of power between employers and employees; 3) coworkers do not have the same skills as a union representative and may, in fact, be a participant in the incident being investigated; and 4)  the presence of a coworker who does not have the same fiduciary obligations as a union representative may compromise the confidentiality of information.  Visit http://www.nlrb.gov/nlrb/shared_files/decisions/341/341-148.htm if you want to view the entire opinion. 
 
The bottom line for employers is that IBM is now the law - unless a federal court modifies the ruling or a shift in Board membership results in (another) change of position by the NLRB.  For now, employers in non-unionized settings can return to the days where there was much greater control in conducting workplace investigations.  For questions regarding IBM or workplace investigations, please contact Donna K. McElroy at 210.554.5272 or at dkm@coxsmith.com.
 
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