A Divided NLRB Overrules Prior Caselaw and Holds that Employees in a Non-Unionized Workplace Are NOT Entitled to Representation at a Disciplinary Interview

Volume 3, Issue 10
June 16, 2004

In a decision just released for publication yesterday, the National Labor Relations Board ("NLRB") ruled, by a 3-2 vote, that employees who work in non-unionized workplaces are not entitled to have a coworker accompany them to disciplinary interviews. The NLRB's majority overruled Epilepsy Foundation of Northeast Ohio, 331 N.L.R.B. 676 (2000), which had dramatically altered the labor law landscape by extending to unrepresented employees a right to have a coworker present during disciplinary interviews.

The case, IBM Corp., 341 N.L.R.B. No. 148 (Jun. 9, 2004), involved IBM's investigation into allegations of harassment contained in a letter it received from a former employee. Three employees, who had already been placed on administrative leave, requested to have a coworker present for their investigatory interviews. Their requests were denied. Later, all three employees were terminated.

An NLRB administrative law judge ("ALJ"), applying Epilepsy Foundation, found that IBM violated Section 8(a) (1) of the National Labor Relations Act by denying the employees' requests for the presence of a co-worker. Upon review, the NLRB majority reversed Epilepsy Foundation and the ALJ's decision. The NLRB did so on policy reasons, concluding that features of the contemporary workplace, including the ever increasing requirements to conduct workplace investigations, as well as new security concerns raised by incidents of national and workplace violence, necessitate that employers be allowed to conduct their required investigations in a thorough, sensitive, and confidential manner. It determined that such investigations can best be accomplished without the presence of coworkers.

For non-unionized employers struggling to apply the Epilepsy Foundation requirements in the context of their investigation obligations under such laws as Title VII of the Civil Rights Act of 1964 and Sarbanes Oxley, this development is a major victory.

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