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The National Labor Relations Board (NLRB) recently held by a 3-2 vote that employees who work in a nonunionized work force do not have the right to have a co-worker present at an investigatory interview with their employer, even if the affected employee reasonably believes that the interview might result in discipline. IBM Corp., 341 NLRB No. 148 (June 9, 2004). This decision overruled Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000), which had extended to unrepresented employees a right to have a co-worker present during such interviews and returned to pre- Epilepsy board precedent applying Weingarten rights only to unionized employees. Section 7 of the National Labor Relations Act provides that employees have the right to engage in “concerted activities for the purposes of . . . mutual aid or protection.” 29 U.S.C. 157. In Weingarten, 202 NLRB 446 (1973), the NLRB held for the first time that an employer violates the act when it denies an employee’s request for the presence of a union representative at a predisciplinary investigatory interview. The Supreme Court, with three justices dissenting, upheld the NLRB’s interpretation as “a permissible construction of ‘concerted activities for . . . mutual aid or protection.’ ” NLRB v. J. Weingarten Inc., 420 U.S. 251, 260 (1978). The court reasoned that the employee seeking union representation at a “confrontation with his employer” was engaging in “concerted activities for the purpose of . . . mutual aid or protection” because “[t]he union representative . . . is safeguarding not only the particular employee’s interest, but also the interests of the entire bargaining unit.” Id. at 260-261. In its discussion of the “contours” and “limits” of the Weingarten rule, the high court explained that the right arises “only in situations where the employee requests representation”; that the right to request representation as a condition to participation in the interview “is limited to situations where the employee reasonably believes the investigation will result in disciplinary action”; and that the employer may carry on its inquiry without interviewing the employees, thus leaving to 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.” See Hardin & Higgins, 1 The Developing Labor Law (BNA Books 4th Ed. 2001) at 193 (citing Weingarten, 420 U.S. at 256-260). Extension of ‘Weingarten’ to a nonunion setting Weingarten did not, however, address the situation in which an employee, in a nonunion setting, asks for a co-worker to be present as his representative at an investigatory interview. In the years since Weingarten, the NLRB has changed its position several times in considering whether employees in nonunion settings may invoke Weingarten. In 1982, the board extended the Weingarten right to employees who had requested the presence of a co-worker in a nonunionized setting, reasoning that the right derives from the � 7 right of employees to engage in concerted activity for mutual aid or protection. Materials Research Corp., 262 NLRB 1010 (1982). However, just three years later, in Sears, Roebuck & Co., 274 NLRB 230 (1985), the board reversed Materials Research, rejecting its interpretation of � 7 and holding that the act “compels” the conclusion that Weingarten “applies only to unionized employees.” In 1988, the board modified its S ears Roebuck holding, on remand from the 3d U.S. Circuit Court of Appeals, in E.I. DuPont, 289 NLRB 627, 629-30 (1988). In DuPont, the board determined that its view that the act did not confer Weingarten rights in a nonunionized setting was a permissible interpretation of the act, though the act did not compel this interpretation. Yet the board concluded that significant policy considerations support- ed not extending Weingarten rights to the nonunion workplace. In 2000, the board revisited this issue again in Epilepsy Foundation, 331 NLRB 676 (2000) and returned to the standard set forth in Materials Research, and the D.C. Circuit found this determination was a reasonable interpretation of the act. Epilepsy Foundation of Northeast Ohio v. NLRB, 268 F.3d 1095 (D.C. Cir. 2001). In IBM, the employer denied the requests of three unrepresented employees to have a co-worker present during investigatory interviews about a former employee’s allegations that they had engaged in harassment. An NLRB administrative law judge, applying Epilepsy Foundation, found that the employer violated the act by denying the employees’ requests. Upon review, a board majority reversed Epilepsy and, thus, the judge. Chairman Robert J. Battista and Member Ronald E. Meisburg found that national labor relations policy is best served by overruling Epilepsy Foundation and returning to the DuPont precedent. They concluded that re-examining Epilepsy was proper because there have been many changes in the workplace environment, including ever-increasing requirements to conduct workplace investigations, pursuant to federal, state and local laws, especially of discrimination and sexual harassment claims, as well as new security concerns raised by incidents of national and workplace violence. These policy considerations led them to conclude that an employer must be permitted to conduct its investigations in a thorough, sensitive and confidential manner, which can best be accomplished by permitting an employer in a nonunion setting to investigate an employee without the presence of a co-worker. They specifically pointed to four factors supporting their decision. First, co-workers are less likely than union representatives to “safeguard” the interests of the entire work force. Second, co-workers, chosen on an ad hoc basis, are without any official status and are thus less likely than union representatives to redress the imbalance of power between employers and employees. Third, co-workers do not have the same knowledge and skills as union representatives and thus are not as effective in facilitating workplace relationships. Fourth, the presence of a co-worker, as opposed to a union representative, is more likely to compromise the confidentiality of information. Member Peter C. Schaumber concurred, holding that Weingarten does not extend to nonunion workers and finding that policy considerations support this limitation. In addition, he viewed the right recognized in Weingarten as being “inextricably tied to” the presence of a union representative. Members Wilma B. Liebman and Dennis P. Walsh dissented from the majority “abruptly overruling” Epilepsy, particularly since it was recently upheld on appeal as “both clear and reasonable.” They found that empirical evidence supported neither the majority’s conclusion that nonunion workers are incapable of representing each other effectively nor that co-worker representatives have interfered with even a single employer investigation. They concluded that a statutory foundation for co-worker representation exists under � 7, even in the absence of a union, because turning to a co-worker for help when faced with an interview that might end with the employee’s firing is “mutual aid or protection” and having a co-worker present at the interview greatly ensures the employees’ opportunities to act in concert to address their concerns that the employer does not institute or continue a practice of imposing discipline unwisely. They further found that due process considerations supported such representation because the presence of a co-worker at a disciplinary interview gives the affected employee a “potential witness, advisor, and advocate” in what can be an adversarial situation and can militate against the imposition of unjust discipline by the employer. The impact of the ‘IBM’ decision IBM does not affect unionized employees’ Weingarten rights. A unionized employee still has the right to request the presence of a union representative at an investigatory interview that he reasonably believes might result in discipline. An employer responding to this request may still grant the request, discontinue the interview or offer the employee the choice of continuing the interview without union representation or having no interview at all. Thus, in the union context, an employer still has the option to forgo an interview. This option allows the employer to reach a conclusion and impose discipline based on its independent findings, though it leaves the employer open to charges that it did not conduct a fair and thorough investigation, which in turn exposes the employer to legal risk. From the perspective of the nonunion employer pursuing an investigation of employee conduct, but unaware of the applicability of Weingarten, IBM removes a potential tripwire created by the Epilepsy board. Also, while the presence of a co-worker in the nonunion setting may be of some value to the employee, it appears evident that a co-worker’s assistance in a nonunion setting is unlikely to be as valuable as a union representative’s assistance in a union setting. On the other hand, IBM does not leave employees without recourse to the variety of alternative dispute resolution processes that may be available in the nonunion workplace. Furthermore, the issue in IBM was not whether an employee has a right to seek the assistance of a co-worker at an investigatory interview; at least four of the five board members in IBM reaffirmed that such a request is protected activity and therefore nonunion employees cannot be disciplined for asserting this right, even though their employer under IBM now has no obligation to accede to the employee’s request. IBM is likely to be appealed to a court of appeals, which in turn is likely to affirm the holding, citing the deferential standard of review. This issue will then be resolved-at least until three Democratic appointees are on the board, at which time this issue is likely to be revisited . . . again. Kenneth R. Dolin is a partner in the labor and employment practice group of Chicago’s Seyfarth Shaw.

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