In Epilepsy Foundation of Northeast Ohio, the Board overruled existing precedent which had established that Weingarten was limited to union workplaces.  In doing so, the Board found that all employees, union and nonunion,  should have the right to request that a representative be present at investigatory interviews.  The Board emphasized that the right to engage in concerted activity means that the actual presence of the desired coworker is required if the investigatory interview is to take place and the employee insists on having his request granted.  The Board concluded that this would be safeguarding the interests of all other employees through concerted activity.

          It is permissible for an employer to refuse to conduct this scheduled investigatory interview and to instead pursue other means of resolving the matter.  This alternative, however, can pose a problem for employers seeking to investigate alleged wrongful conduct such as workplace harassment in which an employer has a duty to conduct a thorough investigation.  Thus, employers should carefully consider the impact of foregoing an investigatory interview when a Weingarten request is made in a nonunion setting especially before going forward with a highly confidential investigatory interview.

          It is too early to foresee the outcome of the NLRB's recent decision.  Until the issue is finally resolved by the U.S. Court of Appeals or the U.S. Supreme Court, most employers will have to choose between complying with the Board's ruling or risking litigation and potential damage.  Employers are urged to seek advice from labor counsel regarding the Epilepsy Foundation decision, its future compliance policy and the principles stated in Weingarten.