Non-union workers no longer entitled to co-worker representation

By G. Phillip Shuler

In what may be an encouraging sign for the new "Bush Board" now with a Republican majority, the National Labor Relations Board (NLRB) ruled June 15 in a 3-2 decision that nonunion employees do not have the right to have a co-worker present at an investigatory interview.

In doing so, the NLRB reversed the Epilepsy Foundation of Northeast Ohio, 331 NLRB 767 (2000), enf'd, 268 F.3d 1095 (D.C. Cir. 2001) decision issued by the Clinton Board just four years ago.

This issue stems from a 1982 U.S. Supreme Court ruling in NLRB v. J. Weingarten Inc. holding that under the National Labor Relations Act (NLRA) unionized workers are entitled to representation during investigatory interviews that they reasonably believe may result in discipline.

During the last 22 years, the NLRB has changed its position four times on the issue of whether these Weingarten rights should be extended to nonunion employees as well.

The case involves IBM Corp., which received a letter from a former contract employee alleging harassment by regular employees and began interviewing employees about the allegations. The three employees who eventually filed unfair labor practice charges were initially interviewed on Oct. 15, 2001.

None of the three employees asked to have a co-worker present during their first interview, but they each made the request prior to their second interview on Oct. 23, 2001. An IBM manager denied the requests.

The company fired the three employees about a month later.

The three employees filed unfair labor practice charges regarding IBM's denial of their request to have a co-worker present during their second interviews. An NLRB administrative law judge applied Epilepsy Foundation and found that the company violated NLRA Section 8(a)(1).

IBM urged the board to overrule Epilepsy Foundation, arguing that the considerations supporting Weingarten rights in unionized workplaces are not present in nonunion workplaces.

According to the board, the company asserted that co-workers, unlike union representatives, do not represent the interests of the entire unit, cannot redress the perceived imbalance of power between the employer and employees, and cannot facilitate the interview process like a union representative.

IBM also argued that extending Weingarten rights to nonunion settings may compromise the investigation process.

Applying its new ruling to the case, the board found the three employees were not entitled to have a co-worker present and dismissed the complaint.

Chairman Robert J. Battista and Member Ronald Meisburg acknowledged that extending Weingarten rights to nonunion workplaces or limiting them to union workplaces are both permissible interpretations of the NLRA. However, the two members found that policy considerations support overruling Epilepsy Foundation.

"In recent years, there have been many changes in the workplace environment, including ever-increasing requirements to conduct workplace investigations, as well as new security concerns raised by incidents of national and workplace violence," Battista and Meisburg said. "Our consideration of these features of the contemporary workplace leads us to conclude 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 co-worker."

In a separate concurring opinion, Member Peter C. Schaumber agreed to overrule Epilepsy Foundation and agreed that policy considerations support limiting Weingarten rights to unionized workplaces. However, he said "the better construction and the one most consistent with the language and policies of the act, is that the Weingarten rights are unique to employees represented by a Section 9(a) bargaining representative."

Dissenting, members Wilma B. Liebman and Dennis P. Walsh pointed out that the U.S. Court of Appeals for the District of Columbia Circuit upheld the board's decision in Epilepsy Foundation as "both clear and reasonable" (268 F.3d 1095, 168 LRRM 2673 (D.C. Cir., 2001)).

NLRA Section 7 gives "all workers, union-represented or not" the right to engage in concerted activities for the purpose of mutual aid or protection, the dissenters said. "It is hard to imagine an act more basic to 'mutual aid or protection' than turning to a co-worker for help when faced with an interview that might end with the employee fired," they said.

The decision has special importance to construction industry employers who have been confronted with salting (infiltration of their work forces by paid union organizers) in recent years. The union salts' sole aim in many cases was to provoke alleged unfair labor practices by the employer. In many cases the salts would request a "brother salt" be present at a disciplinary situation, which created a volatile dynamic.

Under Epilepsy Foundation, salts were able to game the situation; but, following the new IBM ruling, that is no longer possible.

Editor's Note: G. Phillip Shuler is a partner in the New Orleans office of Chaffe, McCall, Phillips, Toler & Sarpy.