Union Rules Intrude Upon the Nonunion Domain: Workplace Investigations and the NLRB

This paper examines the new legal landscape for nonunion employers who contemplate conducting investigations of alleged wrongdoing by their employees. The National Labor Relations Board (NLRB) has ruled that a certain right (the Weingarten right) previously guaranteed only to union members applies equally to at-will employees in nonunionized 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 public policy and practical problems arise when this right is extended to the nonunion environment. This paper offers advice on managing the investigative process, given this new right, and it discusses the propriety of imposing union rules on the nonunion workplace.