NLRB Reverses Latest Grant of Representation Rights to Nonunion Employees
Nonunion employees are not entitled to have a co-worker present during investigatory interviews, the National Labor Relations Board held.
The decision reverses the Board’s 2000 ruling in Epilepsy Foundation, which extended the right to nonunion employees the right to have representation during an investigative interview if the employee reasonably believes that the interview might result in disciplinary action. The Epilepsy Foundation decision, in turn, reversed a twelve-year precedent set by the Board’s 1988 E.I. DuPont decision.
The present case arose after IBM Corporation conducted employee interviews to investigate allegations of harassment made by a former employee. Three of the employees being interviewed requested to have a co-worker or attorney present during the interview. The manager conducting the interviews denied the requests and interviewed the three employees.All three employees were discharged about a month after the interviews and later sued IBM for denying their right to have a co-worker present as set forth in Epilepsy Foundation. When the case reached the Board, the company urged the Board to overrule Epilepsy Foundation and return to the principles of E.I. Dupont.
The Board agreed to do so. It found that both Epilepsy Foundation and E.I. Dupont were based on permissible interpretations of the National Labor Relations Act. In such a situation, the decision as to which interpretation to follow is a matter of policy for the Board to decide in its discretion. Upon examination, the Board concluded that policy considerations warrant reversing Epilepsy Foundation at this time. “In recent years,” the Board noted, “there have been many changes in the workplace environment, including ever-increasing requirements to conduct workplace investigations, as well as new security concerns raised by incidents of national and workplace violence.” An employer must be allowed to conduct 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.”
IBM Corporation, 341 NLRB No. 148 (6/9/04).
For guidance on conducting workplace investigations, click here and scroll down to “Discipline & Investigation of Employee Misconduct.”
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