The NLRB and Workplace Investigations: A Managerial Perspective on Applying Union Rules to the Nonunion Workforce

This article examines the new legal landscape for nonunion employers who contemplate conducting investigations of alleged wrongdoing by their employees. The National Labor Relations Board recently ruled that a certain right (the “Weingarten right”) previously guaranteed only to union members, applies equally to at-will employees in nonunion firms. As a result, all employees now possess the right to ask that a coworker be present during an investigatory interview. While the Weingarten right is sensible in a union environment, significant policy and practical problems arise when this right is extended to the nonunion environment. This article first examines the evolution of the Weingarten right. Next, we discuss the applicability of this right to the nonunion sector. Finally, we summarize the debate over the propriety of applying the Weingarten right to the nonunion workforce. Employers today cannot afford to ignore the importance of conducting investigations into allegations of workplace wrongdoing. Failure to reasonably and competently investigate claims or suspicions of employee wrongdoing may have significant economic impacts on the firm. For employers to receive a heightened