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No Right To Representation In Nonunion Workplace

In IBM Corp. and Shultz, et. al, 341 NLRB 148, the National Labor Relations Board reversed its course and overturned its prior decision in Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000), in which the Board had held that an employee who worked in a nonunion workplace had a right to have a co-worker present during an investigatory interview. The Epilepsy Foundation decision was extremely controversial, in that it departed from well established Board precedent that had its origin in the Supreme Court's seminal decision in NLRB v. J. Weingarten, 420 U.S. 251 (1975).

In IBM Corp. the Board returned to its pre-Epilepsy precedent, largely on the basis that the modern nonunion workplace presents considerations that outweigh those that support the right to representation. In that regard the Board stated:

The years after 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. Employers face ever-increasing requirements to conduct workplace investigations pursuant to federal, state, and local laws, particularly laws addressing workplace discrimination and sexual harassment. We are especially cognizant of the rise in the number of instances of workplace violence, as well as the increase in the number of incidents of corporate abuse and fiduciary lapses. Further, because of the events of September 11, 2001 and their aftermath, we must now take into account the presence of both real and threatened terrorist attacks.

The Board concluded that the change in the nature of workplace interviews "can best be accomplished by permitting an employer in a nonunion setting to investigate an employee without the presence of a coworker."

Conducting effective workplace investigations continues to be a critical element in positioning an employer to successfully defend against employment-related claims. Our attorneys have extensive experience assisting employers on a day-to-day basis with all manner of investigations.