NLRB REVERSES FOUR-YEAR OLD PRECEDENT, DECIDES THAT
NON-UNIONIZED EMPLOYEES ARE NOT ENTITLED TO
REPRESENTATION AT DISCIPLINARY INTERVIEWS

For the past four years, non-union employers have struggled with the National Labor Relations Board’s decision in Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000), which held that employees in non-union workplaces are entitled to have a co-worker present at investigatory interviews which might reasonably result in discipline. Now, in IBM Corp., 341 NLRB No. 148 (June 9, 2004), the Board has reversed that decision, holding that there is no such right under the National Labor Relations Act. The right to have a representative present exists only in a unionized workplace, where the worker is entitled, upon request, to have a union representative present. This is good news for non-union employers, as many employers have found that effective investigations are made much more difficult if coworkers are included.

The IBM case presented a classic situation: Allegations of harassment in the workplace. IBM interviewed a number of employees, including alleged harassers. Some of them requested the presence of a coworker in the interviews. IBM denied the requests, concerned that involving co-workers could compromise the confidentiality of sensitive employee information as well as interfere with the ability to conduct an effective investigation. After the investigation was concluded, some of the employees were discharged. They filed charges with the NLRB, claiming their rights had been violated. By a 3-2 vote, the NLRB disagreed.

This decision does not mean that coworkers cannot be present. Sometimes it will make sense to do so. The decision simply means it is not required, and that the employer is free to follow its own best judgment in investigating issues in the workplace.

Our View:

The IBM case may well be only the first in a series of reversals of some of the more “far out” decisions of the Clinton board. For some time, the Board has been stalemated by a 2-2 split, with the result that there has not been the traditional return to the center that has been normal in previous changes of party control. Now that the Board is fully staffed with five members, three of whom are Republicans, the Board can be expected to revisit a number of other decisions which have tended to favor union and union organizer rights over those of employers. Stay tuned...

If you have any questions, contact us at:

Jeff Chicoine jchicoine@nsslaw.com
Wayne Landsverk wlandsverk@nsslaw.com
Verne Newcomb newcomb@nsslaw.com
Jack Schwartz schwartz@nsslaw.com
Rick S. Pope rpope@nsslaw.com
Brian S. Thompson bthompson@nsslaw.com
Kjersten Turpen kturpen@nsslaw.com
Thomas Bahrman tbahrman@nsslaw.com

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