IBM Corporation

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