A few years ago, we informed you that the U.S. Court of Appeals for the District of Columbia Circuit and the National Labor Relations Board (Board), the federal agency charged with administrative oversight of the National Labor Relations Act (NLRA), had ruled that non-unionized employees, like their unionized counterparts, are entitled to co-worker representation during investigatory interviews they believe might result in discipline. This legal entitlement is commonly referred to as Weingarten rights. Weingarten rights were, however, short-lived in the non-union workplace as the NLRB has recently reversed Board precedent and held that Weingarten rights do not apply in a non-union setting.
The Board centered its decision around an employer's legal obligation to conduct prompt and thorough workplace investigations. The Board observed that co-worker representatives in non-unionized settings, unlike union representatives, do not represent the interests of the entire workforce and lack the power to redress the perceived imbalance of power between an employer and its employees. In addition, co-workers in a non-union setting generally lack the advocacy skills necessary to facilitate the interview process or effectively represent the employee being interviewed. Further, non-unionized employees have no duty of fair representation or confidentiality like union representatives do and, therefore, have the potential to interfere with an employer's ability to conduct a confidential, effective fact-finding investigation. Taking all these factors into account, the Board determined that a non-unionized employer must be allowed to conduct its required investigations in a thorough, sensitive and confidential manner and that this can best be accomplished by permitting the employer to investigate an employee without the presence of a co-worker.