June 24, 2004

RE: Employees In Nonunion Setting Are No Longer Entitled To Representation In An Investigative Interview

Last week, the National Labor Relations Board issued an important decision affecting all nonunion work environments. In this decision, the National Labor Relations Board reversed its 2000 ruling regarding a nonunion employee’s right to have a co-worker present during an investigative meeting with management.

As we informed clients in 2000, settled law provides that a union employee has the right to request the presence of a union representative during a meeting or interview with management if the union employee reasonably believes the meeting or interview could result in disciplinary action. The right is commonly referred to as the Weingarten right named after the United States Supreme Court case addressing this issue.

Prior to the summer of 2000, it was also settled law that nonunion employees did not have the same right to insist that a co-worker be present during meetings or interviews with management even if the employee reasonably believed that discipline could result. The rationale was twofold. Nonunion employees do not need assistance in dealing with an employer with regard to the terms of a collective bargaining agreement. Also, in a nonunion setting, employers have the right to deal with employees on an individual basis. Unfortunately, in 2000, the Board reversed direction and set forth a new rule requiring nonunion employers to allow their employees the right to have a co-worker present during a meeting with management if the employee reasonably believed discipline may result from the meeting.

Fortunately, the Board, in a 3-2 vote, has reversed itself yet again and found that nonunion employees are not entitled to demand the presence of a co-worker at an investigative meeting with management. In this most recent decision involving an IBM Corp. employee, the Board stated that “the years since the issuance of Weingarten have seen a rise in the need for investigatory interviews, both in response to new statutes governing the workplace and as a response to new security concerns raised by terrorist attacks on our country.” The Board observed that in today’s workplace, employers are often called upon to interview employees on a wide array of charges and issues, including workplace violence, discrimination, sexual harassment, corporate abuse, fiduciary lapses and “real and threatened” terrorist attacks. The Board concluded that an employer “must be allowed to conduct its required investigations in a thorough, sensitive and confidential manner” and that this is best accomplished by permitting an employer to investigate an employee without the presence of a coworker.

I would like to be able to inform you that I expect this rule will not be revisited in the future. However, the mindset of the Board changes as the composition of the Board changes. The Board has either reversed or modified this rule no less than five times since 1982. We will continue to keep you informed of new developments.

Please note that this new decision does not affect unionized employees’ Weingarten rights. An employee still has the right to request the presence of a union representative at an investigative interview which the employee reasonably believes might result in disciplinary action. An employer’s options in responding to such a request also have not changed. An employer may: (1) grant the request; (2) discontinue the interview; or (3) offer the employee the choice of continuing the interview without union representation or having no interview at all.

If you have any questions, regarding this issue or any other labor or employment law issue, please contact Peter Bennett or me.

Sincerely,

Frederick B. Finberg