Reference no: EM131281059
IBM Corporation's facility at Research Triangle Park, North Carolina, is a nonunion facility. In response to allegations of harassment contained in a letter from a former employee, an IBM manager interviewed three employees individually in October 2001, after denying each employee's request to have a counselor present during the interview. All three were discharged approximately a month after the interviews. An administrative law judge, applying the Epilepsy Foundation precedent, found that IBM violated Section 8(a)(1) of the Act by denying each employee's request for the presence of a coworker.
A Board majority reversed the Epilepsy precedent in IBM.] From the Opinion of the Board ... Our reexamination of Epilepsy Foundation leads us to conclude that the policy considerations supporting that decision do not warrant, particularly at this time, adherence to the holding in Epilepsy Foundation. In recent years, there have been many changes in the workplace environment, including ever-increasing requirements to conduct workplace investigations, as well as new security concerns raised by incidents of national and workplace violence. Our consideration of these features of the contemporary workplace leads us to conclude that an employer must be allowed to conduct its required investigations in a thorough, sensitive, and confidential manner. This can best be accomplished by permitting an employer in a nonunion setting to investigate an employee without the presence of a coworker....
We find the Charging Parties were not entitled to a coworker during the interviews.... Accordingly, we dismiss the complaint. [Member Schaumber joined the majority opinion's finding that policy considerations support the denial of the Weingarten right to the nonunionized workplace. He believes that the Weingarten right is unique to employees represented by a Section 9(a) bargaining representative.] [Members Liebman and Walsh, Dissenting] ... What is at stake is the Act's guarantees for workers who are not represented by a union, today the great majority of American workers.* The Act applies to these workers, whether they know it or not, and whether or not the Board is prepared to give full recognition to that fact....
[M]odest as the Weingarten right is, it brings a measure of due process to workplace discipline, particularly in nonunion workplaces, where employees and their representatives typically are atwill employees, who may be discharged or disciplined for any reason not specifically prohibited by law. "[T]he presence of a co-worker gives an employee a potential witness, advisor, and advocate in an adversarial situation, and, ideally, militates against the imposition of unjust discipline by the employer." Epilepsy Foundation, 268 F.3d at 1100.... They have overruled a sound decision not because they must, and not because they should, but because they can.... We dissent.
Case Questions
1. Section 7 of the NLRA states in part, "[e]mployees shall have the right ... to engage in concerted activities for the purposes of ... mutual aid or protection." The Board's construction of this language in Weingarten was that it created a statutory right in an employee to refuse to submit to an interview that the employee reasonably feared may result in discipline without union representation. Does this same language provide the same rights to unrepresented employees?
2. Did the dissenters concede that the Board majority could legally overrule the Epilepsy Foundation precedent?
3. List some advantages and disadvantages to having a coworker present at an investigatory interview.