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The case presented before the National Labor Relations Board (NLRB) dealt with a former contract employee who was working for IBM and who alleged harassment by regular employees. During this investigation, three employees of IBM asked to have a co-worker present during their second interview. Their manager denied their requests, and the company subsequently fired the employees. The employees then filed unfair labor practice charges alleging that the employer unlawfully denied their request to have a co-worker present during the second interview. Dismissing this case, the NLRB partially reversed an earlier decision in which Weingarten rights were granted to non-union employees (Epilepsy Foundation of Northeast Ohio, 331 N.L.R.B. 676, 164 LRRM 1233 (2000).
In 1975 the U.S. Supreme court held in NLRB vs. Weingarten, Inc. that employees in unionized workplaces are entitled to representation during investigatory interviews. A subsequent NLRB decision denied Weingarten to non-union settings, followed by two more NLRB decisions extending those rights to non-union workers.
In the current case, the NLRB attempted to distinguish the roles between union and non-union co-workers during investigatory interviews, saying that employees in unionized workplaces are entitled to representation during investigatory interviews to protect the interest of the entire bargaining unit. However, “a coworker in a nonunion settings…has no such obligation to represent the entire workforce,” the board said.
Members of the board reasoned that the difference between a unionized work force and a nonunion work force is that the employer in the latter situation can deal with employees on an individual basis.
Employers must be reminded that this decision only pertains to nonunion employers, as union employees still have a right to have a union representative present at such interviews.