The Board's decision largely was based on policy issues underlying an employer's need to conduct confidential and discreet investigatory interviews in the workplace. In reversing Epilepsy Foundation, the Board found the employees did not have a right to have a co-worker present at an investigatory interview that might lead to discipline. The administrative law judge who heard their case ruled that IBM violated the Act in denying the requested coworker representation. The employees filed unfair labor practice charges against IBM alleging that the denial of representation during the investigatory interviews was unlawful. The employees were subsequently terminated from employment. involved three nonunion employees who alleged they requested and were denied co-worker representation during investigatory interviews which stemmed from a complaint regarding harassment in the workplace. In its Epilepsy Foundation decision in 2000, the Labor Board concluded that its earlier rulings were inconsistent with the Supreme Court's rationale in Weingarten and reasoned that Weingarten rights should be granted to all employees regardless of whether they are represented by a union. 274 NLRB 230, the Board reversed its position and held nonunion employees were not entitled to Weingarten rights. In 1982, the Board decided Materials Research Corporation 262 NLRB 1010, and held that Weingarten rights applied to nonunion employees. Since the Supreme Court's 1975 decision, the Board has changed directions on whether Weingarten rights apply to employees who are not unionized. An employer is not required to advise the employee of this right in advance, and this right is triggered only in the case of investigatory meetings which may result in disciplinary action and not to meetings when, for example, the employer communicates a decision regarding a disciplinary matter. The Supreme Court explained that this right arises from the Act's "guarantee of the right of employees to act in concert for mutual aid and protection." The right to representation is limited to situations in which an employee specifically requests representation. In 1975, the United States Supreme Court upheld a decision by the Board that unionized employees have a right, protected by Section 7 of the National Labor Relations Act, to insist upon union representation during an investigatory interview conducted by their employer, provided the employee "reasonably believes" the interview "might result in disciplinary action." NLRB v. ruling marks the fourth time in the past 23 years the Board has changed its position on this issue. decision overrules the Labor Board's 2000 decision in Epilepsy Foundation of Northeast Ohio 331 NLRB 676, which extended Weingarten rights to nonunionized employees. 148), the Board found that the so-called Weingarten rights of unionized employees do not apply to employees not represented by a union. In a 3-2 decision released on J( IBM Corp., 341 NLRB No. In a decision which impacts the workplace investigation practices of all employers, the National Labor Relations Board has ruled that nonunion employees do not have the right to have a representative present during an interview that might reasonably lead to disciplinary action.
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