You probably haven’t heard much about one of the biggest decisions I think is coming in 2024. In Big Green (27-CA-283572), General Counsel Abruzzo is asking the National Labor Relations Board (NLRB) to reverse its decision in IBM Corp., 341 NLRB 1288 (2004). Although not widely publicized, this decision will impact every workplace investigation in non-union workplaces covered by the National Labor Relations Act (NLRA).
The Background of Big Green
At the heart of Big Green lies the question of whether non-union employees have the right to bring a witness into investigatory interviews — something that today is only required in unionized workplaces. The right to a witness in unionized settings was established in the Supreme Court’s 1975 Weingarten decision (420 U.S. 251). The situation in non-union settings has flip-flopped over the years.
In 1982, the Board extended the Weingarten rule to cover employees in non-union workplaces in Materials Research Corp., 262 N.L.R.B. 1010 (1982). The NLRB held that non-represented employees had the right to request the presence of a coworker in an investigation interview where an employee reasonably believes disciplinary action could result. The Board reversed itself in Sears, Roebuck Co., 274 N.L.R.B. 230 (1985). The Board then re-adopted the right to employee witnesses in non-union locations in Epilepsy Foundation of Northeast Ohio, 268 F.3d 1095 (D.C. Cir. 2001). Finally, in 2004, the Board overturned the Epilepsy Foundation in IBM Corp.
I’m not sure if we’re in a flip or a flop, but if you’re like me, you find that last paragraph dizzying to read. Now, with Big Green briefed and sitting before the NLRB, the potential for another major shift is on the horizon.
Implications of Big Green
Few doubt that the NLRB will adopt the General Counsel’s request to overturn IBM Corp. However, Big Green has the potential to go further than any of these prior decisions. That’s because, in Big Green, the employee initially requested that a union representative witness her investigatory interview.
The NLRB has never ruled that an employee has a right to ask a non-employee to witness their investigatory interview. Could they do so now? There is some reason to believe they could.
In days, the Occupational Safety and Health Administration (OSHA) will publish its final Worker Walkaround Representative Designation Process. This new process clarifies that when OSHA conducts an inspection based on an employee complaint, the employee is allowed to designate their own representative—employee or non-employee—to join the inspection. The rule specifically notes that an employee may designate “a representative from a worker advocacy group, community organization, or labor union” to be their representative during an OSHA inspection.
There remain many questions about this new rulemaking from OSHA, but clearly the precedent has been set at the Department of Labor. If employees want a witness during an OSHA investigation, they can pick a union representative, even if that union does not currently represent those employees. While the NLRB has never found that Section 7 gives employees the right to a non-employee witness during investigatory interviews, the OSHA rulemaking cracks open the door for just such a ruling. It’s a crack in the door the current NLRB majority could crash right through.
A ruling allowing non-employees (whether union organizers or not) to enter an employer’s property and act as witnesses during internal investigations raises all sorts of problems. In addition to an alarming infringement on basic property rights, it causes major anxieties about confidentiality, privacy, and the integrity of internal investigations.
Potential Consequences for Employers and Employees
Employers, especially in non-unionized environments, could face numerous challenges if the NLRB decides to allow employee witnesses. These include:
Confidentiality Concerns: The presence of a co-worker could make it harder to maintain the confidentiality of an investigation, potentially leading to leaks of sensitive information. The presence of an outside union organizer with motives far beyond simply witnessing an investigation amplifies this risk. And its recent McLaren Macomb decision shows the current NLRB doesn’t take these confidentiality concerns very seriously.
Integrity of Investigations: Employers want to keep investigations private and confidential to protect the integrity of the process. It prevents witnesses from attempting to coordinate stories and makes it harder to find out exactly what happened. This protects perpetrators of workplace discrimination and harassment who want to avoid punishment.
Retaliation Risks: In addition to hurting the integrity of investigations, the lack of confidentiality risks increasing workplace tension, where a perpetrator may attempt to harass and intimidate potential witnesses. This is why the Equal Employment Opportunity Commission recommends that workplace investigations remain confidential to the extent possible.
Disruptions: Allowing a non-employee witness to investigations could disrupt an investigation and normal business operations. Prior decisions only allowed the employee to ask for a co-worker witness, and they could not pick someone who would unnecessarily delay the investigatory interview. If an employee is allowed to pick someone outside the company (or even pick a witness who isn’t at work), this could disrupt an investigation. Delays in investigations are harmful to the process and create more opportunities to disrupt the integrity of the investigation and increase the risk of retaliation and intimidation. It’s also easy to imagine a union organizer attempting to create additional disruptions if allowed onto the employer's premises during an investigatory interview.
The Road Ahead
Regardless of the outcome, Big Green represents a critical moment in labor law. It illustrates the fundamental tension between expanding employee rights and preserving employer autonomy in conducting internal investigations (not to mention running the rest of its operation).
Big Green is also another example of how the NLRB has evolved into a political body from an expert agency. One thing that frustrates Courts of Appeal is how NLRB decisions flip-flop back and forth depending on who’s in charge. It makes courts less likely to defer to the agency’s interpretation (and is a reason that Chevron deference is likely to fall later this year). In a recent 9th Circuit case, one judge writes with exasperation, “the Board’s “flip-flop problem” creates nationally unstable labor policy, consistent from one state to another but not from one day to the next.” Valley Hospital Medical Center, Inc. v. NLRB (No. 22-1804, February 20, 2024, O’Scannlain concurring).
Big Green is bad policy. Non-union employers today can voluntarily allow employees to bring witnesses into investigations, and many do. Even if they don’t allow witnesses, employers are still obligated to conduct fair investigations, and concerns about the integrity of the investigation can be raised afterward. Allowing non-employees with motives far beyond ensuring the fairness of the investigation (and, in many cases, a motive to disrupt or derail an investigation) is extremely troubling. Hopefully, the NLRB will resist the urge to flip (or is it flop?) once again.
