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The NLRB's 'IBM' Decision
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.
NLRB v. J. Weingarten Inc.
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 pre-disciplinary 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.
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