1 IBM Corporation An employee who is not represented by a union is not entitled to the presence of a co-worker at an interview that the employee reasonably believes will result in discipline –Employer may decline employee’s request and continue to interview employee –Weingarten rights do not apply in a nonunion workplace –Reverses Epilepsy Foundation (2000) and reverts to Dupont (1988) –Either Dupont or Epilepsy Foundation are permissible constructions of the NLRA Board may choose either

2 Previous Decisions Materials Research (’82) – Sec. 7 basis makes right applicable when ees not represented Sears (’85) – Act does not permit Weingarten rights for nonunion ees –variation in scope of Sec. 7 rights depending on rep.. –Infringement on right of er to deal with ees individually in absence of representation Dupont (’88) – Act permits Weingarten rights for nonunion ees; NLRB has discretion; decided against Weingarten rights for nonunion ees –Redressing of power imbalance less important if no rep –No bargaining unit interests which need be protected –Questions skills of a co-worker who is not a union rep

3 Previous Decisions (cont.) Epilepsy Foundation (’00) – revert to Materials Research –Weingarten rights are applicable to nonunion ees Section 7 basis Enhances right to act in concert with other employees to prevent unjust discipline Reinforces principle that Sec. 7 rights not dependent on union representation Employer right to deal individually with non exc. repped ees does not outweigh Sec. 7 rights of ees to act in concert –No er obligation to bargain with co-worker –Weingarten co-worker is dealing, not bargaining –No labor org present and no er obligation to “deal,” er may investigate without interviewing ee

4 Rationale to Reconsider Epilepsy Foundation “Changing Patterns of Industrial Life” –Increased need for investigatory interviews New statutes –Discrimination –Sexual Harassment Security Concerns –Terrorism –Workplace Violence

5 Rationale for Distinction Between Unionized and Nonunion Workplaces Co-worker does not represent interests of entire bargaining unit – no bargaining unit No redress of power or concern of consistency of practice Lack of co-worker skills Co-worker under no legal obligation not to divulge confidential information

6 Concurrence NLRB has recognized common law right of management to deal with employees on an individual basis when employees not represented by a union

7 Dissent No reason to reconsider Epilepsy Foundation –no connection between right of co-worker representation and workplace violence or terrorism –Evolving norm of fairness Rationale for granting nonrepresented workers a right to co-worker representation –Section 7 basis of Weingarten right Right to engage in concerted activity for mutual aid and protection Interests of unit, lack of skills, bargaining power matters for employees to consider when making the request; existence of a right not the same as efficacy of the right Problems can be addressed on a case-by-case basis