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National Labor Relations Board Decision - August 12.2004
On June 9, 2004 , the National Labor Relations Board held that employees who work in a nonunion workplace are not entitled, under Section 7 of the National Labor Relations Act, to have a coworker accompany them to an interview with their employer, regardless of whether the employee reasonably believes that the interview may result in discipline. See IBM Corp., 341 NLRB No. 148 (2004 ). Taken as a whole, employers should benefit from this decision because it will allow them to conduct workplace investigations in a much more thorough, prompt, and confidential manner. In addition, the decision eliminates a procedural requirement that nonunion employers have often overlooked.
The employer in this case, IBM Corporation, interviewed three employees in response to allegations of harassment contained in a letter it had received from a former employee. During a series of interviews, IBMs manager interviewed each of the employees after denying their individual requests to have a coworker present during their interviews. All three employees were discharged approximately a month after the interviews.
In finding for the employees, the administrative law judge relied on the NLRBs decision in Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000), that had extended to nonunion employees the right to have a witness present during an investigatory interview that the employee reasonably believed may result in discipline. In that case, the NLRB held that the right established in NLRB v. Weingarten, 420 U.S. 251 (1075), in which the U.S. Supreme Court held that a union employee possesses the right to have a union representative present at an investigatory interview which the employee reasonably believes may result in disciplinary action, be extended to nonunion workplaces.
In reversing the judge, the Boards majority found that the holding in Epilepsy Foundation did not best serve national labor policy by extending the right to representation at a disciplinary interview to nonunion employees. The Board adhered to its duty to adapt the Act to changing patterns of industrial life, by noting changes in work environments that require employers to conduct various kinds of workplace investigations pursuant to local, state, and federal laws, especially within the context of sexual harassment and workplace discrimination. The Board further recognized the employers need to conduct such investigations in a thorough, prompt, and confidential manner.
The majority also reasoned that, unlike a unionized workforce, coworkers in nonunion workplaces do not represent the interests of the entire workforce; coworkers cannot redress the imbalance of power between employees and employers because they lack any official status; coworkers are not as effective in facilitating disciplinary interviews because they lack the same level of knowledge and skill that union representatives possess; and lastly, the presence of a coworker, instead of a union representative, may compromise the confidentiality of the investigation due to the personal, rather than professional connection that the coworker probably shares with the employee in question. The examination and analysis of these factors led the Board to conclude that:
On balance, the right of an employee to a coworkers presence in the absence of a union is outweighed by an employers right to conduct prompt, efficient, thorough, and confidential workplace investigations. It is our opinion that limiting this right to employees in unionized workplaces strikes the proper balance between the competing interests of the employer and employees.
The Board noted that this balance of competing interests is preserved through other procedures that provide a measure of due process in a workplace without union representation. For instance, the Board noted that there are a variety of alternative dispute resolution processes available, employees may seek the presence of an ombudsman in their workplace to investigate complaints, and there are whistleblower statutes that protect employees from employer retribution.
This decision will benefit Maine employers of nonunion workers by enabling them to conduct more efficient, thorough and confidential investigations. This will be of particular help as employers in Maine respond to increasing requirements to conduct workplace investigations, as well as new security concerns raised by incidents of national and workplace violence. The dissenting opinion, however, noted that the Epilepsy Foundation holding had been upheld on appeal as clear and reasonable, and that the Board has now changed its position three times in the past eighteen years. As a result, Maine employers of nonunion workforces should continue to stay apprised of future developments regarding this issue.
Please contact Matthew S. Raynes, mraynes@eatonpeabody.com, for further information.
This paper is provided as general information, and is not a substitute for legal or other professional advice.
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National Labor Relations Board Decision - August 12.2004
On June 9, 2004 , the National Labor Relations Board held that employees who work in a nonunion workplace are not entitled, under Section 7 of the National Labor Relations Act, to have a coworker accompany them to an interview with their employer, regardless of whether the employee reasonably believes that the interview may result in discipline. See IBM Corp., 341 NLRB No. 148 (2004 ). Taken as a whole, employers should benefit from this decision because it will allow them to conduct workplace investigations in a much more thorough, prompt, and confidential manner. In addition, the decision eliminates a procedural requirement that nonunion employers have often overlooked.
The employer in this case, IBM Corporation, interviewed three employees in response to allegations of harassment contained in a letter it had received from a former employee. During a series of interviews, IBMs manager interviewed each of the employees after denying their individual requests to have a coworker present during their interviews. All three employees were discharged approximately a month after the interviews.
In finding for the employees, the administrative law judge relied on the NLRBs decision in Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000), that had extended to nonunion employees the right to have a witness present during an investigatory interview that the employee reasonably believed may result in discipline. In that case, the NLRB held that the right established in NLRB v. Weingarten, 420 U.S. 251 (1075), in which the U.S. Supreme Court held that a union employee possesses the right to have a union representative present at an investigatory interview which the employee reasonably believes may result in disciplinary action, be extended to nonunion workplaces.
In reversing the judge, the Boards majority found that the holding in Epilepsy Foundation did not best serve national labor policy by extending the right to representation at a disciplinary interview to nonunion employees. The Board adhered to its duty to adapt the Act to changing patterns of industrial life, by noting changes in work environments that require employers to conduct various kinds of workplace investigations pursuant to local, state, and federal laws, especially within the context of sexual harassment and workplace discrimination. The Board further recognized the employers need to conduct such investigations in a thorough, prompt, and confidential manner.
The majority also reasoned that, unlike a unionized workforce, coworkers in nonunion workplaces do not represent the interests of the entire workforce; coworkers cannot redress the imbalance of power between employees and employers because they lack any official status; coworkers are not as effective in facilitating disciplinary interviews because they lack the same level of knowledge and skill that union representatives possess; and lastly, the presence of a coworker, instead of a union representative, may compromise the confidentiality of the investigation due to the personal, rather than professional connection that the coworker probably shares with the employee in question. The examination and analysis of these factors led the Board to conclude that:
On balance, the right of an employee to a coworkers presence in the absence of a union is outweighed by an employers right to conduct prompt, efficient, thorough, and confidential workplace investigations. It is our opinion that limiting this right to employees in unionized workplaces strikes the proper balance between the competing interests of the employer and employees.
The Board noted that this balance of competing interests is preserved through other procedures that provide a measure of due process in a workplace without union representation. For instance, the Board noted that there are a variety of alternative dispute resolution processes available, employees may seek the presence of an ombudsman in their workplace to investigate complaints, and there are whistleblower statutes that protect employees from employer retribution.
This decision will benefit Maine employers of nonunion workers by enabling them to conduct more efficient, thorough and confidential investigations. This will be of particular help as employers in Maine respond to increasing requirements to conduct workplace investigations, as well as new security concerns raised by incidents of national and workplace violence. The dissenting opinion, however, noted that the Epilepsy Foundation holding had been upheld on appeal as clear and reasonable, and that the Board has now changed its position three times in the past eighteen years. As a result, Maine employers of nonunion workforces should continue to stay apprised of future developments regarding this issue.
Please contact Matthew S. Raynes, mraynes@eatonpeabody.com, for further information.
This paper is provided as general information, and is not a substitute for legal or other professional advice.
<< Back to Of Law Updates & Archives