Marie Leone’s “Courts and Torts” column appears monthly. Contact her at [email protected].
In the fifth in a series of a flip-flops by the National Labor Relations Board (NLRB), management came out the winner in June when the NLRB sided with IBM Corp. and ruled that the “Weingarten right” does not apply to non-union employees.
The Weingarten right is named after a 1975 Supreme Court decision (NLRB v. J. Weingarten) that gave unionized employees the right to have a co-worker present at an internal investigation related to workplace misconduct, such as sexual harassment or other misdeeds that could result in disciplinary action.
The NLRB ruled in favor of an IBM manager who denied three non-union workers the right to co-worker representation during internal interviews related to harassment charges. All three employees under investigation were fired about a month after the interviews.
In reaching this latest decision, the board overturned its 2000 ruling involving the Epilepsy Foundation, which said that the Weingarten right did apply to non-union employees.
Indeed, the recent decision was the fifth time since 1985 that the NLRB changed its mind about how to interpret the Weingarten decision. Further, the NLRB could reverse its ruling once again.
That’s mainly because the board members based their 2004 decision on the current workplace environment. And that, legal experts said, is apt to change.
In practical terms, the new IBM decision eliminates a potentially big headache for corporations—workplace rumors—by
providing management with tighter control on who can become involved in an investigation.
There are no confidentially rules that bind co-workers participating in an investigation from discussing it with other employees. Thus, it’s important to contain company gossip that could unfairly influence employees slated to be interviewed in connection with a workplace, says Jeff Braff, a partner with the law firm of Cozen O’Connor. “It’s always difficult to conduct a workplace investigation because it is usually a he-said/she-said situation,” contends Braff.
But thwarting gossip was not the NLRB’s rationale for siding with IBM. The board, following what it said were principles laid out in the Weingarten decision “to adapt the Act to changing patterns of industrial life,” cited, rapidly changing workplace conditions as one of its motivations. The current crop of NLRB members argued that streamlining the internal interview process would be helpful because corporate investigations are likely to increase.
The board explained in its IBM decision that the up-tick in corporate investigations would be driven by new statutes related to discrimination, sexual harassment, and workplace violence; new security concerns raised by terrorist attacks; and an increase in incidents of corporate abuse and fiduciary lapses.
Presidential politics probably also play a role in the Weingarten right interpretations. For one thing, the NLRB consists of five members appointed by the President to a five-year term, subject to Senate confirmation. The terms are staggered to assure that each year one term expires. Four of the five current board members have been directly appointed by President Bush. The fifth member was reappointed by the president after being originally nominated by President Clinton. Legal sources say that the board usually votes in concert with the sitting president’s policies.
So far, the board has reworked its interpretation in 1982, in a case involving Materials Research Corp.; in 1985, related to a Sears, Roebuck and Co. case; and in 1986, associated with the E.I.duPont de Nemours and Company decision, before it ruled on the Epilepsy Foundation and IBM cases. If presidential policies change, however, corporate executives shouldn’t be shocked if the NLRB reverses its stance, yet again.