Non-Union Employees Are Not Entitled To Have A Coworker Present During Investigations

July 2004

In IBM Corporation, et al., decided June 9, 2004, the National Labor Relations Board ("NLRB") reversed its position regarding a non-represented employee's right to have a co-worker present during investigatory interviews.  Under the Supreme Court's decision in NLRB v. Weingarten, 420 U.S. 251 (1975), an employee represented by a union has that right.  Originally, the NLRB held that the right did not extend to non-represented employees.  E.I. DuPont & Co., 289 NLRB 627 (1988).  Later, in Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000), the NLRB reversed itself, extending the right to all employees.

Now, the Board has changed course again, returning to the principles of DuPont.  The argument is that, in the union setting, the representative is present to represent the interests of the entire workforce.  Where no union is present, a coworker does not have that same function.  The Board is able to waffle between these two positions because both offer reasonable interpretations of the National Labor Relations Act.  When two such interpretations exist, which interpretation the Board applies is a matter of policy. 

In IBM, the Board stated that:

an employer must be allowed to conduct its 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 coworker.

As always, it is important that investigations be handled promptly and carefully, in both union and non-union settings.  For help conducting such interviews or investigations, for supervisor training on how to handle interviews, or for other employment related questions, please contact a Frost Brown Todd Labor and Employment Attorney.

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