July 18, 2000

What happens when a non-union employee you suspect of theft asks that a coworker be present when you question her? According to the National Labor Relations Board (NLRB), even non-union employees now have a right to have a coworker attend an investigatory interview.

In Epilepsy Foundation of Northeast Ohio, Case Nos. 8-CA-28169 and 8-CA-28264 (July 10, 2000), the NLRB held that the employer violated the National Labor Relations Act when it discharged an employee when he refused to attend an investigatory interview unless a coworker was present. In so holding, the NLRB expressly decided to overturn precedent and extend coverage of the long-standing Weingarten rule from union to non-union employees.

Under NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), an employer is required to permit union-represented employees to have a union representative present at investigatory interviews. The Weingarten rule applies within the following strictures: (1) The employee requests representation. (2) The employee’s right to request representation applies to "situations where the employee reasonably believes the investigation will result in disciplinary action." (3) The exercise of the right may not interfere with "legitimate employer perogatives" during the interview process. (4) The employer is not obligated to interview the employee and may offer the employee "the choice between having an interview unaccompanied by his representative, or having no interview and foregoing any benefits that might be derived from one." (5) The employer is not obligated to provide the specific union representative requested by the employee, if the representative is not available. (6) Any waiver of the right, once asserted, must be clear and unmistakable to be effective. (7) An employer is not required to advise the employee of the right to a representative.

Although some of the foregoing guidelines are readily applicable to a non-union employee's request for a coworker to be present, others do not translate so readily. Because the NLRB’s Epilepsy Foundation decision lacks any details as to how the Weingarten right should be applied to non-union employees, there will undoubtably be future NLRB decisions addressing this subject. For now, the important thing is to permit employees to have a coworker present at investigatory interviews, if requested.

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