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NLRB - National Labor Relations Board |
IBM Corp., 341 NLRB No. 148 (06/09/2004)
Epilepsy
Foundation overruled; Non-unionized workers not entitled to representation
at disciplinary interview
IBM Corporation and
Kenneth Paul Schult, Robert William Bannon, and Steven Parsley. Cases
11–CA–19324, 11–CA–19329, and 11–CA–19334
June 9, 2004
DECISION AND ORDER
By
Chairman Battista and Members Liebman, Schaumber,Walsh, and Meisburg
The sole issue in this case is whether the Respondent, whose employees are not represented by a union, violated Section 8(a)(1) of the Act by denying the Charging Parties’ requests to have a coworker present during investigatory interviews.[1] The judge, applying the Board’s decision in Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000), enfd. in relevant part, 268 F.3d 1095 (D.C. Cir. 2001), cert. denied, 536 U.S. 904 (2002), found that the Respondent violated the Act by denying the Charging Parties’ requests for the presence of a coworker.
The Respondent urges the Board to overrule Epilepsy Foundation and return to the principles of E. I. DuPont & Co., 289 NLRB 627 (1988). In that case, the Board refused to apply the principles of NLRB v. J. Weingarten, 420 U.S. 251 (1975), in a nonunionized setting to permit an employee to have a coworker present at an investigatory interview that the employee reasonably believed might result in discipline. The various amici curiae join in the Respondent’s request.
Having carefully considered the entire record in this proceeding, including the briefs of the Respondent and the various amici curiae, we have decided, for the reasons set forth below, to overrule Epilepsy Foundation and to return to earlier Board precedent holding that the Weingarten right does not extend to a workplace where, as here, the employees are not represented by a union. Accordingly, we have decided to affirm the judge’s rulings, findings,[2] and conclusions only to the extent consistent herewith and to dismiss the complaint in its entirety.
Facts
On October 15, 2001,[3] the Respondent, prompted by allegations of harassment contained in a letter it received from a former employee, interviewed each of the Charging Parties. None of them requested the presence of a witness during the October 15 interviews. On October 22, the Respondent’s manager, Nels Maine, denied Charging Party Bannon’s request to have a coworker or an attorney present at an interview scheduled for the next day. On October 23, Maine interviewed each of the Charging Parties individually after denying each employee’s request to have a coworker present during the interview. All three employees were discharged approximately a month after the interviews.[4]
Judge’s Decision
The judge found, on the basis of credited testimony, that Bannon, Schult, and Parsley each asked to have a coworker present during their October 23 interviews and that the Respondent denied their requests. The judge next observed that the Board, in Epilepsy Foundation, had extended to unrepresented employees the Weingarten right to have a witness present during an investigatory interview that the employees reasonably believed might result in discipline. Applying Epilepsy Foundation, the judge concluded that the Respondent violated Section 8(a)(1) of the Act by denying the Charging Parties’ requests to have a coworker present during their October 23 interviews.
Contentions of the Respondent and Amici Curiae
The Respondent requests that the Board overrule Epilepsy Foundation and return to prior Board precedent that Weingarten rights apply only to unionized employees. The Respondent asserts that the Board’s decision in DuPont made clear that the considerations supporting application of the Weingarten right in a unionized setting do not exist in a nonunion setting. The Respondent points out that coworkers, unlike union representatives, do not represent the interests of the entire work force; cannot redress the perceived imbalance of power between an employer and its employees; and cannot facilitate the interview process in the same way as a union representative. The Respondent further asserts that extending the Weingarten right to a nonunion setting may compromise the confidentiality of sensitive employment information obtained during an interview, as well as interfere with an employer’s ability to conduct an effective fact-finding investigation.
The joint amici curiae contend that the Epilepsy Foundation rule is an impediment to an employer’s ability to conduct an effective internal workplace investigation. The joint amici curiae specifically assert that, in addition to confidentiality issues, the presence of a coworker during an investigatory interview reduces the chance that the worker being interviewed will tell the truth. COLLE, in its amicus brief, agrees with the contentions of the Respondent and the joint amici curiae, and further asserts that neither Section 7 nor Section 9(a) of the Act permit the extension of the Weingarten right to the nonunionized workplace.
Analysis
and Conclusions
After careful reexamination of the rationale of Epilepsy Foundation, we find that national labor relations policy will be best served by overruling existing precedent and returning to the earlier precedent of DuPont, which holds that Weingarten rights do not apply in a nonunion setting.
A. The Issue of Whether to hold that Weingarten Rights Apply or do not Apply in a Nonunionized Workplace Requires the Board to Choose Between two Permissible Interpretations of the Act
We agree with the Board’s conclusion in DuPont, on remand from the Court of Appeals for the Third Circuit, that a holding that Weingarten rights do not apply in a nonunionized workplace involves a permissible construction of the Act, and that a holding that they do apply is also a permissible construction. In its decision remanding the case to the Board, the Third Circuit rejected the Board’s conclusion in DuPont I, 274 NLRB 1104 (1985) and Sears, Roebuck & Co., 274 NLRB 230 (1985), that the Act compelled the finding that Weingarten rights do not extend to the nonunionized workplace. Slaughter v. NLRB, 794 F.2d 120 (1986). The court found that the Board had erred in reasoning that the right to have a representative at an investigatory interview is rooted in Section 8(a)(5) of the Act, rather than Section 7, and had misinterpreted the Supreme Court’s decision in Emporium Capwell Co. v. Western Addition Coummunity Organization, 420 U.S. 50 (1975), as standing for the proposition that Section 7 rights are circumscribed by the exclusivity principle of Section 9(a).[5] With respect to the source of the Weingarten right, the court concluded: “We think it is plain beyond cavil that the Weingarten right is rooted in Section 7’s protection of concerted activity, not Section 8(a)(5)’s guarantee of the right to bargain collectively.” Slaughter, 794 F.2d at 126. The court further stated that the Emporium Capwell decision “was grounded in the need to protect the union’s Section 9(a) status as the majority-elected, exclusive-bargaining representative, so to assure orderly collective bargaining. It cannot, therefore, be read to hold that the Section 9(a) exclusive representation rule limits the Section 7 rights of non-unionized employees.” Id. at 127. The court concluded that under the reasoning of Weingarten, “it is at least permissible to interpret Section 7 as guaranteeing union members and unorganized employees alike the right to a representative at investigatory interviews.” Id. at 127. The court remanded the case to the Board for further consideration of alternative grounds for its position.
On remand in DuPont, the Board adopted the court’s view that the statute did not compel the conclusion that Weingarten rights do not apply in a nonunionized workplace, and overruled precedent to the contrary.[6] The Board further concluded, consistent with the court’s holding, that the refusal to extend Weingarten to the nonunionized workplace was a permissible interpretation of the Act, and that adopting this interpretation was supported by significant policy considerations.
We agree with the Board’s position
on remand in
DuPont, and find that the Board’s decision in that case is
a permissible interpretation of the Act.
By the same token, we acknowledge that the Board’s decision in Epilepsy
Foundation extending the Weingarten right to the nonunionized
workplace is also a permissible interpretation of the Act.
Because there is Board precedent in this area presenting two
permissible interpretations of the statute, the decision as to which approach
to follow is a matter of policy for the Board to decide in its discretion.
“It is the Board’s duty to choose amongst permissible
interpretations of the Act to best effectuate its overarching goals.”
Slaughter, 794 F.2d at 125.
B. The Reexamination of Epilepsy Foundation is a Proper Exercise of the Board’s Adjudicative Authority
In
choosing today to return to the permissible interpretation set out in DuPont,
we engage in a process both anticipated and approved by the Supreme Court in Weingarten.
There, the Court noted that the Board had overruled its earlier
precedent by recognizing the right of an employee to refuse to submit, without
union representation, to an investigatory interview that the employee
reasonably believes may result in disciplinary action.
The Court approved the Board’s action, finding that the Board was
free to reexamine past constructions of the Act.
Indeed, the Court observed that it was in the nature of administrative
decision-making to do so. Thus
the Court stated:
‘Cumulative experience’ begets understanding and insight by which judgments . . . are validated or qualified or invalidated. The constant process of trial and error, on a wider and fuller scale than a single adversary litigation permits, differentiates perhaps more than anything else the administrative from the judicial process. Weingarten, supra, 420 U.S. at 265–266, quoting NLRB v. Seven-Up Co., 344 U.S. 344, 349 (1953).
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.
C. Policy Considerations Underlying Board Precedent Concerning Application of the Weingarten Right
The history of an employee’s right to have a representative present during an investigatory interview begins with the Supreme Court’s decision in Weingarten. The Supreme Court there held that an employer violates Section 8(a)(1) of the Act by denying an employee’s request to have a union representative present at an investigatory interview which the employee reasonably believes might result in disciplinary action. The Court explained that the right to the presence of a representative is derived from Section 7 of the Act giving employees the right to engage in concerted activities for mutual aid or protection. The Court stated that the union representative whom an employee seeks to include in an interview “safeguard[s] not only the particular employee’s interest, but also the interests of the entire bargaining unit . . . .” Weingarten, 420 U.S. at 260. The Court also recognized that the Act was designed to eliminate a perceived imbalance of power between labor and management and that “[r]equiring a lone employee to attend an investigatory interview . . . perpetuates the inequality the Act was designed to eliminate, and bars recourse to the safeguards the Act provided. . . .” Weingarten, 420 U.S. at 262. Additionally, the Court observed that because an employee attending an interview by himself may not have the wherewithal to protect or defend himself, a “knowledgeable union representative could assist the employer by eliciting favorable facts, and save the employer production time by getting to the bottom of the incident occasioning the interview.” Weingarten, 420 U.S. at 263. The Court concluded that the right to the presence of a union representative comported with actual industrial practice, noting that collective-bargaining contracts often contained provisions affording the right of union representation at interviews.
Weingarten did not address the situation in which an employee of a nonunionized employer asks for a coworker to be present as his representative at an investigatory interview. The Board first considered this issue in Materials Research Corp., 262 NLRB 1010 (1982), and decided that the Weingarten right encompasses the right of an employee to request the presence of a coworker in a nonunionized setting. The Board stressed that the right to representation derives from the Section 7 right of employees to engage in concerted activity for mutual aid or protection, i.e., two employees acting together, rather than the Section 9 right of a union to act as an employee’s collective-bargaining representative. Thus, the Board concluded that the Weingarten right does not depend on whether the employees are represented by a union.
The Board abandoned that position in Sears, Roebuck & Co., 274 NLRB 230 (1985), finding instead that Weingarten rights do not apply in the absence of a certified or recognized union. The Board rejected the Materials Research position that Weingarten rights are based on Section 7 of the Act and concluded that to award unrepresented employees the right to the presence of a coworker is inconsistent with the statutory right of an employer, in the absence of a union, to deal with its employees on an individual basis.
The Sears rationale was modified on remand from the Court of Appeals for the Third Circuit in E. I. DuPont & Co., 289 NLRB 627 (1988), where the Board, although reaffirming its view that Weingarten rights apply only in a union setting, acknowledged that this view was a “permissible” rather than “mandatory” interpretation of the Act as it had stated in Sears. The Board maintained its position that unrepresented employees do not possess a Section 7 right to the presence of a fellow employee in an investigatory interview, and specifically pointed to at least three factors supporting its decision. First, the Board noted that because the employee representative in a nonunion setting has no obligation to represent the entire work force as does a union representative, he is less likely to “safeguard” the interests of the entire workforce. Second, the Board noted that an employee representative, as compared to a union representative, is less likely to have the skills necessary to effectively represent the employee being interviewed. Third, the Board stated that if an employer decides, as it has the right to do under Weingarten, to dispense with an employee interview and go forward with disciplinary action, the employee loses what is most likely his only chance to tell his version of an incident. In a union setting, in contrast, the employee may have the chance to present his defense under the grievance resolution process set up by the collective-bargaining contract. The Board concluded that, on balance, the interests of labor and management were better served by “declining to extend” the Weingarten right to a nonunion setting. DuPont, 289 NLRB at 629–630.
DuPont remained the law for 12 years until it was overruled in Epilepsy Foundation. The Board in Epilepsy Foundation emphasized that the right to representation is grounded in Section 7 of the Act which protects the right of employees to engage in concerted activities for mutual aid or protection, and that “Section 7 rights are enjoyed by all employees and are in no wise dependent on union representation for their implementation.” Epilepsy Foundation, 331 NLRB at 678, quoting Glomac Plastics, Inc., 234 NLRB 1309, 1311 (1978). The Board also rejected, as “wholly speculative,” the claims, stated in DuPont, that coworker representatives do not represent the interests of the whole work force, or that they lack the ability to provide effective representation, or that an employee whose employer decides to forego an interview is left without a chance to tell his story.
D. Policy Considerations Support the Denial of the Weingarten Right in the Nonunionized Workplace
In reviewing the policy
considerations underlying the application of the Weingarten right, we
follow the teaching of the Weingarten Court that the Board has a duty
“to adapt the Act to changing patterns of industrial life.
. . . [T]he Board has the
‘special function of applying the general provisions of the Act to the
complexities of industrial life.’” Weingarten,
420 U.S. at 266. The years after
the issuance of Weingarten have seen a rise in the need for
investigatory interviews, both in response to new statutes governing the
workplace and as a response to new security concerns raised by terrorist
attacks on our country. Employers face ever-increasing requirements to conduct
workplace investigations pursuant to federal, state, and local laws,
particularly laws addressing workplace discrimination and sexual harassment.
We are especially cognizant of the rise in the number of instances of
workplace violence, as well as the increase in the number of incidents of
corporate abuse and fiduciary lapses. Further,
because of the events of September 11, 2001 and their aftermath, we must now
take into account the presence of both real and threatened terrorist attacks.
Because of these events, the policy considerations expressed in DuPont
have taken on a new vitality. Thus,
for the reasons set forth below, we reaffirm, and find even more forceful, the
result and the rationale of
DuPont. We hold that the Weingarten
right does not extend to the nonunion workplace.
1. Coworkers do not represent the interests of the entire work force. In Weingarten, the Supreme Court emphasized that a union representative accompanying a unit employee to an investigatory interview represents and “safeguards” the interests of the entire bargaining unit. Weingarten, 420 U.S. at 260. This is so because the unit employees have selected a union as their bargaining representative and the union has delegated to its officials the authority to act on its behalf for the entire unit. The union’s officials are bound by the duty of fair representation to represent the entire unit. Whatever the union representative accomplishes inures to the benefit of the entire unit, not just to the individual employee.
A coworker in a nonunion setting, on the other hand, has no such obligation to represent the entire work force. There is no legally defined collective interest to represent, because there is no defined group, i.e., a bargaining unit, with common interests defined by a collective-bargaining contract. Additionally, because there is no group to represent, there is typically no designated representative. Rather, the choice of a representative is done on an ad hoc basis and the identity of the representative may change from one employee interview to the next. Moreover, a coworker does not have the same incentive to serve the interests of the group as does a union representative. The coworker is present to act as a witness for and to lend support to the employee being interviewed. It is speculative to find that a coworker would think beyond the immediate situation in which he has been asked to participate and look to set precedent. A coworker has neither the legal duty nor the personal incentive to act in the same manner as a union representative.
2. Coworkers cannot redress the imbalance of power between employers and employees. In Weingarten, the Supreme Court recognized that one of the purposes of the Act is to protect workers in the exercise of concerted activities for their mutual aid or protection. The presence of a union representative at a meeting with an employer puts both parties on a level playing field inasmuch as the union representative has the full collective force of the bargaining unit behind him.
Additionally, a union representative has a different status in his relationship with an employer than does a coworker. The union representative typically is accustomed to dealing with the employer on a regular basis concerning matters other than those prompting the interview. Their ongoing relationship has the benefit of aiding in the development of a body of consistent practices concerning workplace issues and contributes to a speedier and more efficient resolution of the problem requiring the investigation.
This is not true in a nonunion setting. Unlike a union representative, a coworker chosen on an ad hoc basis does not have the force of the bargaining unit behind him. A coworker does not usually have a union representative’s knowledge of the workplace and its politics. Because the coworker typically is chosen on an ad hoc basis, he has no “official status” that he can bring to the interview. In other words, a coworker is far less able to “level the playing field,” for there is no contract from which he derives his authority and he typically has no other matters to discuss with an employer.
3. Coworkers do not have the same skills as a union representative. The Supreme Court in Weingarten recognized the unique skills that a union representative brings to an investigatory interview: a “knowledgeable” union representative can facilitate the interview by “eliciting favorable facts,” clarifying issues, and eliminating extraneous material, all of which save the employer valuable production time. Weingarten, 420 U.S. at 263. A union representative is accustomed to administering collective-bargaining agreements and is familiar with the “law of the shop,” both of which provide the framework for any disciplinary action an employer might take against a unit member. A union representative’s experience allows him to propose solutions to workplace issues and thus try to avoid the filing of a grievance by an aggrieved employee.
A coworker is unlikely to bring such skills to an interview primarily because he has no experience as the statutory representative of a group of employees. It is likely that a coworker is chosen out of some personal connection with the employee undergoing the interview and while that coworker may provide moral and emotional support, it should not be expected that he could skillfully assist in facilitating the interview or resolving the issues. Moreover, it is possible that a coworker, with enthusiasm but with no training or experience in labor relations matters, could actually frustrate or impede the employer’s investigation because of his personal or emotional connection to the employee being interviewed.
Finally, an employee being interviewed may request as his representative a coworker who may, in fact, be a participant in the incident requiring the investigation, as a “coconspirator.”[7] It can hardly be gainsaid that it is more difficult to arrive at the truth when employees involved in the same incident represent each other. By contrast, the union representative in a unionized setting can offer more objective assistance. The Epilepsy result does not take into account the significant policy considerations relevant to a nonunion work force. The critical difference between a unionized work force and a nonunion work force is that the employer in the latter situation can deal with employees on an individual basis. The Board’s decision in Epilepsy does not take cognizance of that distinction. It forbids the employer from dealing with the employee on an individual basis. Thus, for this reason as well, grounded in national labor policy, we choose not to follow Epilepsy. Further in this regard, our colleagues suggest that the term “dealing” is confined to the Section 2(5) definition of “labor organization.” That is not true. The Board uses the phrase “dealing” to condemn direct contacts between a unionized employer and employees.[8] Our point is that, prior to Epilepsy, a nonunion employer could have such contacts with individual employees. Today we return to that doctrine.
4. The presence of a coworker may compromise the confidentiality of information. Employers have the legal obligation, pursuant to a variety of federal, state, and local laws, administrative requirements, and court decisions, to provide their workers with safe and secure workplace environments. A relatively new fact of industrial life is the need for employers to conduct all kinds of investigations of matters occurring in the workplace to ensure compliance with these legal requirements. An employer must take steps to prevent sexual and racial harassment, to avoid the use of toxic chemicals, to provide a drug-free and violence-free workplace, to resolve issues involving employee health matters, and the like. Employers may have to investigate employees because of substance abuse allegations, improper computer and internet usage, and allegations of theft, violence, sabotage, and embezzlement.
Employer investigations into these matters require discretion and confidentiality.[9] The guarantee of confidentiality helps an employer resolve challenging issues of credibility involving these sensitive, often personal, subjects. The effectiveness of a fact-finding interview in sensitive situations often depends on whether an employee is alone. If information obtained during an interview is later divulged, even inadvertently, the employee involved could suffer serious embarrassment and damage to his reputation and/or personal relationships and the employer’s investigation could be compromised by inability to get the truth about workplace incidents.
Union representatives, by virtue of their legal duty of fair representation, may not, in bad faith, reveal or misuse the information obtained in an employee interview.[10] A union representative’s fiduciary duty to all unit employees helps to assure confidentiality for the employer.
A coworker, however, is under no similar legal constraint. A coworker representative has no fiduciary duty to the employee being questioned or to the workplace as a whole. Further, it is more likely that a coworker representative in casual conversation among other coworkers and friends in the workplace, could inadvertently “let slip” confidential, sensitive, or embarrassing information. Not only is this upsetting to the employee directly affected, it also interferes with an employer’s ability to conduct an effective internal investigation. The possibility that information will not be kept confidential greatly reduces the chance that the employer will get the whole truth about a workplace event. It also increases the likelihood that employees with information about sensitive subjects will not come forward.
To be sure, under Weingarten and Epilepsy, the employer can conduct the investigation without the presence of the employee. However, in many situations, the employer will want to hear the story “from the horse’s mouth”, i.e., directly from the employee. Weingarten and Epilepsy foreclose that approach unless the employee is granted the presence of another employee.
The presence of the other employee causes its own problems. As discussed above, the presence of the other employee may well inhibit the targeted employee from candidly answering the questions posed by the employer. And, if he does candidly respond, there is a concern that the assisting employee will reveal to others what was said. Finally, the employer may have an interest in keeping quiet the fact of the inquiry and the substance of the questions asked. There is a danger that an assisting employee will spread the word about the inquiry and reveal the questions, thereby undermining that employer interest.
We recognize that many of these same concerns exist in a unionized setting as well. However, the dangers are far less when the assisting person is an experienced union representative with fiduciary obligations and a continuing interest in having an amicable relationship with the employer. Further, there is no merit to the dissent’s reasoning that the existence of these concerns in the unionized setting necessarily means that the Weingarten right must either be available in both unionized and nonunionized workplaces, or it must be foreclosed in both workplaces. Such reasoning is contrary to the conclusions of the Third Circuit in Slaughter, the D.C. Circuit in Epilepsy, and the Board’s decision in DuPont (to which we return today), which all concluded that both limiting the Weingarten right to unionized employees and extending it to all employees are permissible interpretations of the Act.
E.
On Balance, Policy Considerations Favor Overruling Epilepsy
Foundation
In reaching our decision today to overrule Epilepsy Foundation and return to previous Board precedent which does not favor extending the Weingarten right to the nonunion workplace, we are mindful of our obligation to construe the Act in a manner which best effectuates the policies of the Act. With that responsibility in mind, we have considered the entire record in this proceeding, including the briefs filed by the Respondent and the amici curiae. We have also carefully examined, as discussed above, Board precedent presenting reasons both for and against permitting the Weingarten right to be exercised in a nonunion setting. Finally, we have assessed the “changing patterns” and “complexities” of industrial life.
Our examination and analysis of all these factors lead us to conclude that, on balance, the right of an employee to a coworker’s presence in the absence of a union is outweighed by an employer’s right to conduct prompt, efficient, thorough, and confidential workplace investigations. It is our opinion that limiting this right to employees in unionized workplaces strikes the proper balance between the competing interests of the employer and employees.
We recognize, as did the DuPont Board, that the parties to a workplace investigation have the option to forego an interview, which allows the employer to reach a conclusion and impose discipline based on its independent findings. We further recognize, however, that this approach is not optimal for either side and forces what could be an unsatisfactory conclusion based on something less than the whole truth. Further, under today’s statutory schemes, foregoing the employee interview leaves an employer open to charges that it did not conduct a fair and thorough investigation, which in turn exposes the employer to possible legal liability based on a claim that unfair discipline was imposed based on incomplete information. As for the employee involved, if the interview is not held, he loses the chance to tell his version of the incident under investigation because there typically is no grievance procedure in a nonunion setting to provide an alternative forum. This, in essence, forces the employer to act on what may possibly be, at best, incomplete information and, at worst, erroneous information.
As we stated in DuPont, we do not deny that “an employee in a workplace without union representation might welcome the support of a fellow employee . . . [and] that, in some circumstances, the presence of such a person might aid the employee or both the employee and the employer.” DuPont, 289 NLRB at 630. Our decision today, however, does not leave employees without recourse to other procedures which provide a measure of due process in the nonunionized workplace. For example, there are a variety of alternative dispute resolution processes available, such as peer mediation. Employees also may seek the presence of an ombudsman in their workplace to investigate complaints and help achieve an equitable solution. Finally, there are “whistleblower” statutes, which protect employees from employer retribution.
We reaffirm what the Board stated earlier in DuPont when it declined to extend the Weingarten right to nonunionized employees:
[W]hile nothing in Weingarten inexorably precludes us from extending the right, we are confident that in carrying out our responsibility here—defined by the Court as achieving a “fair and reasoned” balance between the conflicting interests of labor and management—we best effectuate the purposes of the Act by limiting the right of representation in investigatory interviews to employees in unionized workplaces who request the presence of a union representative. DuPont, 289 NLRB at 630–631.
Our dissenting colleagues launch an attack on what they perceive to be our position. However, the dissenters’ attack is on a position that we do not hold. We are not saying that a nonunion employee lacks a Section 7 right to seek mutual aid and assistance from a fellow employee. We are not saying that a nonunion employee is incapable of representing a fellow employee. We are not saying that nonunion employees lack the legal right to seek to stand up for each other. We are not saying that nonunion employees lack the protection of the Act or that such protection is endangered.
In sum, employees have the right to seek such representation; they cannot be disciplined for asserting those rights. Electrical Workers Local 236, 339 NLRB No. 156, slip op. at 2 (2003). See also E. I. DuPont & Co., 289 NLRB 627, 630 fn. 15 (1988). Our only holding is that the nonunion employer has no obligation to accede to the request, i.e., to deal collectively with the employees.
As shown, our colleagues misunderstand our position. Most assuredly, we do not seek to turn the American workplace into “a new front in the war on terrorism,” and we do not seek to have the Board lead the charge in any such war. With all respect, that language does not further a reasonable analysis of the issue before us. We will nonetheless respond. We simply observe that some employers, faced with security concerns that are an outgrowth of the troubled times in which we live, may seek to question employees on a private basis for a host of legitimate reasons. Those employers start no war, and the Board does not encourage them, or discourage them, from having such private inquiries. The Board simply refrains from forbidding employers to hold such private inquiries.
We recognize that, under Epilepsy, the nonunion employer is not required to “bargain” with the involved employees and his assisting employee. However, our point is a narrower one. Under that case, the nonunion employer is forbidden to speak individually with a solitary employee in connection with the employment-related matter of potential discipline. As we see it, nonunion employers are free to do so. Indeed, this is what distinguishes them from unionized employers. We would preserve the distinction. This is not to say that a contrary view would necessarily be contrary to the statute. It is simply to say that our view is in better harmony with the historic distinction between unionized and nonunion employers.
Our colleagues also say that the right given in Epilepsy could be limited rather than taken away. However, this approach puts the proverbial rabbit in the hat. The threshold issue is whether the right was prudently granted in Epilepsy. For the reasons set forth above, we believe that the right was not prudently granted.
Our colleagues argue for a case-by-case approach of whether employers should be obligated to grant an employee’s request for assistance. Thus, there would be some cases where the employer’s need for private investigation outweighs the employee’s need for assistance, and some cases where the reverse would be true. In our judgment, this approach would lead to extensive litigation, uncertainty on the shop floor, and a general lack of federal guidance as to when the request can be granted and when it can be denied. We prefer to have a bright line, just as there is a bright line for Weingarten rights among unionized employees.
Our colleagues assert that the problems of permitting representation in the nonunion sector would also be present in the union sector. However, in a unionized setting, the employees have a Section 9 representative, and this consideration outweighs the employer’s need for private inquiry. But, in the nonunion sector, this consideration is not present. Thus there is rationally a different result.
Our colleagues assert that alternative dispute resolution (ADR) mechanisms have become increasingly common. But, the significant point is that these mechanisms are established, and can succeed, only with the voluntary agreement of the parties. Our colleagues would impose, by governmental fiat, such a mechanism on all employers. Our colleagues have forgotten that voluntarism is the essential underlying premise of ADR.
Finally, our dissenting colleagues complain that we are overturning the precedent of Epilepsy. But Epilepsy itself overturned 15 years of solid precedent in Sears and DuPont. Today, we restore that precedent.
Applying the law we fashion today to the facts of the present case, we find that the Charging Parties were not entitled to the presence of a coworker during the interviews the Respondent conducted on October 23. Accordingly, we dismiss the complaint.
ORDER
The complaint is dismissed.
Dated, Washington, D.C.
June 9, 2004
Ronald Meisburg, Member
(seal)
National Labor Relations Board
Member
Schaumber,
concurring.
Introduction
I
join the majority in overruling Epilepsy Foundation of Northeast Ohio1
(“Epilepsy”) and holding that the right recognized in Weingarten2
of an employee to the presence of a union representative at certain
predisciplinary interviews does not extend to nonunion workplaces.
I fully concur with my colleagues in finding that the policy
considerations advanced in the majority decision support such a limitation.
In addition, and assuming without deciding that other interpretations
of the National Labor Relations Act (“Act”) and the Supreme Court’s
holding in Weingarten may be at least “permissible,” these policy
considerations support my view, set out below, that the better construction
and the one most consistent with the language and policies of the Act, is that
the Weingarten right is unique to employees represented by a Section
9(a) bargaining representative.
The
Board’s decision to the contrary in Epilepsy sheared Weingarten from
its historical, factual and analytical roots; infringed upon recognized and
fundamental common law management prerogatives; and ignored extant Board
precedent that requires actual proof—rather than presuming its
existence—of activity which is both “concerted” and “for mutual aid
and protection” to qualify for protection under Section 7.
Consequently, Epilepsy represented an abrupt and unwarranted
departure from established law, an error we correct through our decision
today.
i.
the right recognized in weingarten is the right to the presence of an
employee’s section 9(a)
representative
Both
the Board’s arguments to the Supreme Court in Weingarten and the
language of the Court’s opinion demonstrate conclusively that the right
recognized in Weingarten flows from, and is inexorably tied to, the
presence of a collective-bargaining agreement and a Section 9(a)
representative. Consequently, the
Epilepsy Board majority’s assertion that the Board’s decisions in
“Sears[3]
and DuPont[4]
misconstrue the language of Weingarten and erroneously limit its
applicability to the unionized workplace” rings utterly hollow.
331 NLRB at 678.
In
Weingarten, 202 NLRB 446 (1973), the Board broke from past precedent
and held for the first time that an employer violates Section 8(a)(1) of the
Act when it denies an employee’s request for the presence of a union
representative at a predisciplinary investigatory interview.
The Board premised its decision on an employee’s Section 7 right
“to bargain collectively through representatives of [his or her] own
choosing and to engage in other “concerted activities for the purpose of . .
. mutual aid or protection.” 29
U.S.C. § 157. As the Board
framed the precise issue presented on appeal to the Supreme Court:
Section 7 of the National Labor
Relations Act guarantees to employees the right “to bargain collectively
through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective-bargaining or other mutual
aid or protection .
. . .” All agree that the
imposition of discipline is a proper subject of a grievance and that Section 7
protects the right of employees to present grievances to the employer through
their union representative. Indeed,
the court below acknowledged that an employee is entitled to union
representation when the employer has decided “to impose disciplinary
measures upon the employee,” for otherwise “grievance hearings later on
would merely put the seal on the employer’s prejudgment” (citation
omitted). The issue here is
whether Section 7 also entitles the employee to union representation at
an investigatory interview which the employee reasonably believes may result
in discipline against him.”
Brief
at 14 (emphasis added).
The
Court, with Chief Justice Burger and Justices Powell and Stewart dissenting,
upheld the Board’s interpretation as “a permissible construction of
‘concerted activities for . . . mutual aid or protection’ by the agency
charged by Congress with enforcement of the Act. . . .”
NLRB v. J. Weingarten, Inc., 420 U.S. 251, 260 (1975) (emphasis
added). The Court summarized the
Board’s “permissible construction” as follows: “[T]hat Section 7
creates a statutory right in an employee to refuse to submit without union
representation to an interview which he reasonably fears may result in his
discipline . .
.” 420 U.S. at 256
(emphasis added).5
The Court reasoned that the employee seeking union representation at a
“confrontation with his employer” was engaging in “concerted activities
for the purpose of . . . mutual aid or protection” because while only the
employee has an
immediate stake in the [interview’s] outcome[,] . . . [t]he union representative whose participation he seeks is . . . safeguarding not only the particular employee’s interest, but also the interests of the entire bargaining unit by exercising vigilance to make certain that the employer does not initiate or continue a practice of imposing punishment unjustly. The representative’s presence is an assurance to other employees in the bargaining unit that they, too, can obtain his aid and protection if called upon to attend a like interview.
420 U.S. at 260–261 (emphasis added; footnote omitted). Thus, Section 7’s dual requirements of concerted activity for the purpose of mutual aid or protection are satisfied in the union context because by reaching out to the employees’ certified representative, the lone employee transforms an otherwise individual interest into a collective concern.
The
Board’s argument and the Court’s analysis parallel the Board’s earlier
adopted Interboro6
doctrine, which deems a lone employee’s reasonable and honest invocation of
a right contained in a collective-bargaining agreement to be concerted
activity for mutual aid or protection. The
Supreme Court affirmed the Interboro doctrine in NLRB v. City
Disposal Systems, 465 U.S. 822 (1984), finding both collectivity and
mutuality in the collective-bargaining agreement, which is itself the product
of collective action. The Court
explained:
The invocation of a right rooted in a collective-bargaining agreement is unquestionably an integral part of the process that gave rise to the agreement. That process—beginning with the organization of a union, continuing into the negotiation of a collective-bargaining agreement, and extending through the enforcement of the agreement—is a single, collective activity. Obviously, an employee could not invoke a right grounded in a collective-bargaining agreement were it not for the prior negotiating activities of his fellow employees. . . . Moreover, when an employee invokes a right grounded in the collective-bargaining agreement, he does not stand alone. Instead, he brings to bear on his employer the power and resolve of all his fellow employees.
Id. at 831–832 (footnote omitted).
When the Weingarten Court said that to require a lone employee to attend a predisciplinary investigatory interview “perpetuates the inequality the Act was designed to eliminate, and bars recourse to the safeguards the Act provided ‘to redress the perceived imbalance of economic power between labor and management,’” 420 U.S. at 262 (quoting American Ship Building Co. v. NLRB, 380 U.S. 300, 316 (1965)), the Court was referring to the Act’s protection of employees’ right to organize, elect a union representation of their choosing, and invoke the assistance of that collective representative in addressing potential grievances—nothing more. Indeed, this was the very argument made by the Board to the Court in its brief:
The Act rests on the reality that “[a] single employee was helpless in dealing with an employer” and that “[u]nion was essential to give laborers opportunity to deal on equality with their employer.” American Steel Foundries v. Tri-City Trades Council, 257 U.S. 184, 209 [1921]. Its design is to establish the conditions of equality by protecting recourse to collective action and thereby to overcome the “relative weakness of the isolated wage earner caught in the complex of modern industrialism. . . . ” S. Rep. No. 573, 74th Cong. 1st Sess. 3. To compel the employee without the aid of union representation to submit to an interview which may lead to his discipline, tends to perpetuate the very inequality which the Act denounces, and to bar recourse to the very means which the Act safeguards to overcome that inequality. The Board’s interpretation of Section 7 avoids this anomalous result.
Brief at 18 (emphasis added).
In its decision, the Supreme Court
emphasized the nature of the employee representative to which the Weingarten
right guarantees access. According
to the Court, “a knowledgeable union representative” intimately familiar
with the terms of the collective-bargaining agreement, the law of the shop,
and the grievance and arbitration process facilitates dispute resolution and
filters out potentially frivolous grievances at an early stage.
420 U.S. at 263–264. Quoting
approvingly from arbitrators’ decisions in Independent Lock Company,7
and Caterpillar Tractor Co.,8
the Court found the Board’s construction of Section 7 in this manner
thus gives “recognition to the right when it is most useful to both employee
and employer.” Id. at 262
(footnote omitted).
In addition, the Court made clear its view that in the context of a union facility, the Board’s interpretation of Section 7 was not breaking new ground; rather, the statutory right the Board articulated and the Court affirmed was “in full harmony with actual industrial practice.” Id. at 267. The Court pointed out that many modern collective-bargaining agreements accord employees the “rights of union representation at investigatory interviews,” and such a right has been sustained by a “‘well-established current of arbitral authority’” independent of its inclusion in the collective-bargaining agreement. Id. (citation and footnotes omitted).
Given the Weingarten
Court’s obvious focus on industrial practices extant in union settings, its
repeated references to the role of the 9(a) representative in protecting the
interests of the entire bargaining unit, and its discussion of the rights
flowing from collective bargaining, it is difficult to reconcile the Court’s
decision with the Epilepsy Board majority’s claim that the language
of Weingarten is misconstrued if restricted to the unionized workplace.
The majority opinion in Epilepsy, however, brushes pasts
the language and context of the Supreme Court’s decision, and, as shown
below, conflicts with established court and Board precedent recognizing the
inherent right of management in a nonunion setting to deal individually with
its employees and requiring a case-by-case, factual analysis of whether
conduct is concerted and for mutual aid or protection.
ii.
unlike an employee in a union setting, an employee in a nonunion setting
cannot refuse to participate in a predisciplinary investigatory interview
without infringing on a management right
In a collective-bargaining agreement, management recognizes the employees’ chosen Section 9(a) representative as the representative of all bargaining unit members, and contracts away certain of its rights, including its right to deal with employees on an individual basis. According to the Supreme Court, the collective-bargaining agreement thus “calls into being a new common law—the common law of a particular industry or of a particular plant.” United Steelworkers of America v. Warrior and Gulf Navigation Co., 363 U.S. 574, 579 (1960). In the absence of a collective-bargaining agreement, however, an employer’s common law right to manage its business and deal with its employees “may be exercised freely except as limited by public law and by the willingness of employees to work under the particular, unilaterally imposed conditions.” Id. at 583. As the Sixth Circuit explained:
The relationship of master and servant or employer and employee is not dependent upon a collective-bargaining contract. It has existed for innumerable years, long before the origin of the modern-day collective-bargaining agreements as provided and made effective by the National Labor Relations Act. The common law rights inherent in such relationship still exist except to the extent that they may be modified by legislation or by the specific contract between the employer and the employee.
United States Steel Corp. v. Nichols, 229 F.2d 396, 399 (6th Cir. 1956).
The Board has often recognized and affirmed the common-law prerogatives of management in nonunion settings, including management’s right to deal with its employees on an individual basis, the right that was implicated in Epilepsy and in the case under consideration. In Charleston Nursing Center, 257 NLRB 554, 555 (1981)(emphasis added), for example, the Board said:
While it is clear that Section 8(a)(1) prohibits an employer from retaliating against employees for engaging in protected concerted activities such as the presentation of grievances, it is also clear that generally an employer is under no obligation to meet with employees or entertain their grievances upon request where there is no collective-bargaining agreement with an exclusive bargaining representative requiring it to do so. Swearingen Aviation Corporation, 227 NLRB 228, 236 (1976), enfd. in pertinent part 568 F.2d 458 (5th Cir. 1978). Furthermore, it is not illegal for an employer in such circumstances to refuse to deal with the employees except on an individual basis. Pennypower Shopping News, Inc., 244 NLRB 536, [537] fn. 4 (1979).
Extending to nonunion employees a Weingarten-styled right to refuse to participate in a predisciplinary investigatory interview unless management accedes to the employee’s insistence upon the presence of a coworker contravenes this established law.9 Such an extension of Weingarten also conflicts with settled Board precedent that employees cannot unilaterally dictate a term or condition of employment and that an employee who attempts to do so is engaged in unprotected insubordination.
In Valley City Furniture, 110 NLRB 1589 (1954), enfd. 230 F.2d 947 (6th Cir. 1956), the employer unilaterally placed the company on a 9-hour workday. In response, the union resorted to self-help by having the employees stop work at 3:30 p.m. instead of at 4:30 p.m., as scheduled by the company. The Board found that the union’s activities, although concerted, were not entitled to the protection of the Act any more than if the employees had engaged in a sit-down or slowdown. The Board explained:
The vice in such a strike derives from two sources. First, the Union sought to bring about a condition that would be neither strike nor work. And, second, in doing so, the Union, in effect was attempting to dictate the terms and conditions of employment. Were we to countenance such a strike, we would be allowing a union to do what we would not allow any employer to do, that is to unilaterally determine conditions of employment. Such a result would be foreign to the policy objectives of the Act.
110 NLRB at 1594–1595.
Similarly, in Bird Engineering, 270 NLRB 1415 (1984), the Board held that several employees who directly defied management’s warnings and direction by ignoring the employer’s lunchbreak rule were engaged in unprotected insubordination, despite the “concerted element” in their actions. Id. at 1415. As the Board explained: “These employees were attempting both to remain on the job and to determine for themselves which terms and conditions of employment they would observe.” Id.
A nonunion employee’s refusal to participate in a predisciplinary investigatory interview without the presence of a coworker constitutes an attempt to dictate a term and condition of employment. Consequently, the insistence upon the coworker’s presence is unprotected insubordination for which the employee may be disciplined. This is so because in a union shop, the successful election and subsequent collective-bargaining agreement “call into being a new common law” of the shop under which management rights are modified or contracted away. Thus, in the union setting in Weingarten, it was unnecessary for the Supreme Court to address whether an employee’s insistence on the presence of his representative amounted to an unprotected attempt to dictate a term and condition of employment. That issue, however, is presented when an employee is working in a nonunion setting governed by the “old” common law.
iii.
epilepsy errs by presuming that the weingarten right extends
to the nonunion setting
A. Epilepsy Analysis
In finding that nonunion employees have “the right to have a coworker present at an investigatory interview,”10 the Epilepsy Board majority lifted out of context a portion of the Weingarten rationale and found it dispositive of the issue. The Epilepsy Board:
attached
much significance to the fact that the Court’s Weingarten decision
found that the right was grounded in the language of Section 7 of the Act,
specifically the right to engage in “concerted activities for the purpose of
mutual aid or protection.” This
rationale is equally
applicable in circumstances where employees are not represented by a union
for in these circumstances the right to have a coworker present at an
investigatory interview also greatly
enhances the employees’
opportunities to act in concert to address their concern “that
the employer does not initiate or continue a practice of imposing punishment
unjustly.”
331 NLRB at 678 (footnote omitted). However, as discussed above, the Weingarten Court’s analysis was set in the context of a unionized shop and the existence of a collective-bargaining agreement and the employee’s Section 9(a) representative. For the Court, the nature of the 9(a) representative—as the product of collective action and the link to “the interests of the entire bargaining group”—made the employee’s insistence upon the presence of a coworker at an investigatory interview “concerted activit[y] for the purpose of . . . mutual aid or protection” within the meaning of Section 7. 420 U.S. at 260.
The same cannot be said when a lone employee in a nonunion setting, that is, in the absence of a collective-bargaining agreement and a 9(a) representative, insists upon the presence of a coworker at an investigatory interview. The evidentiary requisites of concertedness and mutuality simply cannot be satisfied under the presumptive Epilepsy rationale that the right “enhances the employees’ opportunities to act in concert to address their concern ‘that the employer does not initiate or continue a practice of imposing punishment unjustly.’” Indeed, the Epilepsy Board never explained how, in the absence of a collective-bargaining agreement, an individual employee’s insistence upon the presence of a coworker necessarily constitutes concerted activity for mutual aid and protection. It never addressed the inconsistency of the presumption it was adopting with extant Board law. Meyers I and Meyers II (see Section III.B below). Additionally, the Epilepsy Board never explained why in the absence of a collective-bargaining agreement creating a “new common law” of the shop, a nonunionized employer forfeits its common law right to deal with its employees on its own terms and on an individual basis.
The Epilepsy Board majority seems to have excused the need for such explanations by claiming the Weingarten Court did not address the situation of a lone employee’s insistence on the presence of a coworker in a nonunion setting because the issue was not before it. 331 NLRB at 677. While the issue was not before the Court in Weingarten, and the Board certainly did not raise it, Justice Powell’s dissent recognized the specter of the Weingarten rule’s application in a nonunion work environment. NLRB v. Weingarten, 420 U.S. at 270 fn. 1 (Powell, J., dissenting). The Court’s failure to address the issue cannot, therefore, be ascribed to the dictates of the facts presented. By applying the Supreme Court’s Weingarten rationale to the nonunion setting and to an employee’s coworker on the basis that the Weingarten right was grounded in Section 7, and “Section 7 rights are enjoyed by all employees and are in no wise dependent on union representation for their implementation,” the Epilepsy Board simply presumed what it had to prove. 331 NLRB at 678.11 Our duty to apply the Act is not fulfilled when controlling law and evidentiary requirements are ignored because “the purpose of the activity [is] one [the Board] wishe[s] to protect.” Meyers I, 268 NLRB 493, 495 (1984).
B. Epilepsy’s Presumption of Concerted Activity Conflicts with Board Law
Under the Supreme Court’s Weingarten analysis, the nature of the 9(a) representative as the product of collective action and link to “the interests of the entire bargaining group” converted an otherwise individualized concern of a single employee into concerted activity for the purpose of mutual aid and protection within the meaning of Section 7. The Second Circuit emphasized this point in Ontario Knife Co. v. NLRB, 637 F.2d 840, 844 (1980) (emphasis added), when it observed that “[i]mplicit, of course, in the Court’s decision in Weingarten is that the action of an individual in requesting the assistance of a union steward met § 7’s requirement of concertedness[.]”12
In the absence of a collective-bargaining agreement and a 9(a) representative, controlling Board precedent makes clear that Section 7’s requirement of concerted activity may not be presumed but must be demonstrated. As explained below, by extending a Weingarten-styled right to the nonunion setting without requiring such a demonstration, the Epilepsy majority was acting contrary to extant Board law.
When the Board issued its Materials Research decision (262 NLRB 1010) in 1982, in which it extended Weingarten rights to the nonunion setting for the first time, the Board still applied the discredited theory of presumed concerted activity set out in Alleluia Cushion, 221 NLRB 999 (1975).13 Under that theory, the Board found, broadly speaking, that an individual employee’s conduct purposed to benefit all employees would be “deemed” concerted “in the absence of any evidence that fellow employees disavow[ed] such representation.” 221 NLRB at 1000. Ironically, the dissent, while relying on this doctrine to find an individual employee’s insistence on the presence of a coworker at an investigatory interview constitutes protected concerted activity, asserts, at fn. 18, that the “doctrine” of Alleluia Cushion “simply has no bearing on the situation implicated in this case.” The dissent can only make this assertion by limiting the Alleluia Cushion “doctrine” to the facts of that case. But the doctrine of Alleluia Cushion cannot be so limited. See, e.g., Air Surrey Corp., 229 NLRB 1064, 1064 (1977) (emphasis added), enf. denied on other grounds 601 F.2d 256 (6th Cir. 1979), where the Board explained:
In our judgment, [the Alleluia Cushion] decision rests not only on the statutorily expressed concern of the Federal and state governments with respect to safety conditions and a corresponding accommodation of the principles embodied within that legislation with the principles of our own Act, but also on the premise that an individual’s actions may be considered to be concerted in nature if they relate to conditions of employment that are matters of mutual concern to all the affected employees.14
Plainly, the Board was applying this expansive definition of “concerted activity” in Materials Research when it stated that “a request for the assistance of a fellow employee [in the nonunion setting] is also concerted activity—in the most basic and obvious form—since employees are seeking to act together [for mutual aid or protection].” Materials Research, 262 NLRB at 1015.15
Alleluia Cushion’s expansive definition of concerted activity, however, was not well-received by various courts of appeals. The Ninth Circuit, for example, in NLRB v. Bighorn Beverage, 614 F.2d 1238, 1239 (1980), expressly refused to extend the Interboro doctrine of presumed concerted activity (see fn. 6 above and accompanying text) to the nonunion setting on the ground that the presence of a collective-bargaining agreement was “essential because it is the source of the employee’s claimed rights.”16
In Krispy Kreme Doughnut Corp. v. NLRB, 635 F.2d 304 (1980), the Fourth Circuit also rejected the Board’s attempt to extend the doctrine of presumed concerted activity to the nonunion setting. In that case, the court considered the issue of whether “as a matter of law under the Act, discharge of an individual employee for refusing to forego a workmen’s compensation claim constitutes protected ‘concerted activity’[.]” Id. at 306. Reversing the Board,17 the court found that it did not. In reaching this conclusion, the court observed:
The Board cites no circuit decision supporting its theory of presumed “concerted activity” in this case. The only courts which have considered it have flatly rejected any rule that where the complaint of a single employee relates to an alleged violation of federal or state safety laws and there is no proof of a purpose enlisting group action in support of the complaint, there is “constructive concerted action” meeting the threshold requirement under Section 7.
Id. at 309 (emphasis added).
Responding to such criticism from the circuit courts, the Board, in Meyers Industries, 268 NLRB 493 (1984) (Meyers I), remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied 474 U.S. 971 (1985), decision on remand sub nom. Meyers Industries, Inc., 281 NLRB 882 (1986) (Meyers II), aff’d sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988), abandoned the theory of presumed concerted activity adopted in Alleluia Cushion, supra, and properly and substantially narrowed the definition of “concerted activity” by centering the analysis not on the purpose of the conduct alleged to be concerted, but on the nature of the conduct itself. In affirming the Meyers I definition of “concerted activities,” the Board in Meyers II stated that it would require an employee’s activity to “be engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself” in order to qualify for protection under Section 7. 281 NLRB at 884.
In overruling Alleluia Cushion, the Board, consistent with the mainstream view of circuit courts, determined that an activity when engaged in by two employees will be found concerted and therefore protected if for mutual aid or protection but that the same activity when engaged in by a single employee will not constitute concerted activity and will therefore not be protected. Thus, except for its brief detour in applying the Alleluia Cushion doctrine, the Board has properly recognized that Section 7 requirements of “concertedness” and “mutual aid or protection” are separate and distinct and that proof of one is not proof of the other. While my dissenting colleagues may disagree with this distinction, it is extant Board law which has been enforced by the circuit courts.
The dissent cannot avoid this distinction by asserting, as it does at fn. 17 and accompanying text, that in its Meyers II decision, “the Board reiterated that the ‘definition of concerted activity . . . encompasses those circumstances where individual employees seek to initiate or to induce or to prepare for group action.’ Id. at 887.” Although the dissent would read this statement literally as applying to a lone employee, the context of the statement clarifies its meaning. By this statement, the Meyers II Board was only confirming its view that the definition of concerted activity set out in Meyers I, and confirmed in Meyers II, “fully embrac[ed] the view of concertedness exemplified by the Mushroom Transportation [330 F.2d 683 (3d Cir. 1964)] line of cases.” Meyers II, 281 NLRB at 887.
But in Mushroom Transportation, supra, the issue was whether a conversation between employees could constitute concerted activity “although it involves only a speaker and a listener[.]” Mushroom Transportation, 330 F.2d at 685. As Judge Bork explained in his dissenting opinion in Prill v. NLRB, 755 F.2d 941, 965 (D.C. Cir. 1985) (emphasis added):
Indeed, any fair reading of the Meyers opinion would treat it as incorporating the Mushroom Transportation standard, at least as applied by the court that framed it. It was precisely because the “interaction” among employees present in the conversation in Root-Carlin, Inc. [92 NLRB 1313 (1951)] was absent in Mushroom Transportation that the court in the latter case found that the individual employee’s conduct was not concerted.
Suffice it to say that a lone employee’s insistence to his employer on the presence of a coworker at an investigatory interview is neither an “‘interaction’ among employees” nor a “conversation” between two (or more) employees. Therefore, this argument of the dissent is essentially irrelevant to the issue presented.
Although the Board decided Meyers I and II well before its Epilepsy decision, the Epilepsy Board nevertheless applied the discredited Alleluia Cushion definition of concerted activity in that case. As explained above, the Epilepsy Board found a right to have a coworker present at an investigatory interview based on its belief that this right “greatly enhances the employees’ opportunities to act in concert to address their concern ‘that the employer does not initiate or continue a practice of imposing punishment unjustly.’” Epilepsy Foundation, 331 NLRB at 678, quoting Weingarten, 420 U.S. at 260. From the purpose of the right, i.e., enhancement of employees’ opportunities to act in concert, the Epilepsy Board presumed the right concerted. The Epilepsy Board erred by doing so.18 As the Board made clear in Meyers I and II, the determination of whether an employee has engaged in concerted activity “is a factual one based on the totality of the record evidence,” and must be made on a “case-by-case basis.”19 281 NLRB at 886–887.
The above analysis fully justifies my position that even assuming without deciding that other interpretations of the Act and of the Court’s holding in Weingarten may be at least “permissible,” the better construction and the one most consistent with the language and policies of the Act is that the Weingarten right is unique to employees represented by a Section 9(a) bargaining representative. An examination of the dissent’s response only confirms the wisdom of this construction.
iv.
response to dissent
As shown below, neither the dissent’s criticisms of my arguments, nor its description of my views, withstand scrutiny. Rather, it is the dissent’s own analysis that fails to survive application of law and logic.
The dissent begins its critique of my position by misstating it. The dissent asserts that I “strongly imply” that “the position taken in Epilepsy Foundation is not just incorrect, but is impermissible under the Act.” I do not say that. Rather, it is my position that the language and logic of the Epilepsy decision do not provide a sufficient analytical framework from which to conclude that the extension of the Weingarten right to the nonunion setting is permissible under the Act.
Having misstated my position, the dissent attacks it as “out of step with the decisions of the Board . . . and with the values of the Act.” The dissent then states that “[t]he Act put an end to narrow notions of when employees were free to act together.” I infer that, at least from my dissenting colleagues’ point of view, my position is “out of step with the decisions of the Board . . . and with the values of the Act” because I concur with those circuit court decisions that rejected the Alleluia Cushion theory of presumed concerted activity and I adhere to the definition of protected concerted activity set out in Meyers I and II. The Meyers decisions may, perhaps, establish too ‘narrow a notion’ of concerted activity for my dissenting colleagues, but that standard is nevertheless extant Board law. Having disposed of my dissenting colleagues’ criticisms, I will now address their arguments.
A. Extension of the Weingarten Rationale to the Nonunion Setting Lacks a “Strong Foundation” in the Act
In support of its own position that the presumed Section 7 right to representation by a coworker in a non-union setting is coextensive with the Section 7 right to representation in the union setting, the dissent asserts that the right to coworker representation, “in nonunion workplaces as well as unionized ones, has a strong foundation in the Act.” The dissent then proceeds to locate this “strong foundation” not in the Act itself, but in the following argument: First, it relies on the Board’s Epilepsy decision for the proposition that “Section 7 rights are enjoyed by all employees and are in no wise dependent on union representation for their implementation.” 331 NLRB at 678. It then asserts its “belief” that the right to representation is guaranteed by Section 7 and concludes therefrom that “any infringement of that right [i.e., the right to representation] is presumptively a violation of Section 8(a)(1)[.]” By seeking to confirm its belief that the right to representation in the nonunion setting as well as the union setting “is guaranteed by Section 7” and that this right has a “strong foundation” in the Act, the dissent attempts to prove too much.
For, as explained above in Section I, it is the presence of a collective-bargaining agreement and the right of access to a 9(a) representative that establish the “strong foundation” of the Section 7 right to representation at an investigatory interview. Such a right is, after all, a collective right, not an individual one. As the Supreme Court explained in Emporium Capwell Co. v. Community Org., 420 U.S. 50, 61–62 (1975) (emphasis added):
Section 7 affirmatively guarantees employees the most basic rights of industrial self-determination, “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right to refrain from these activities. These are, for the most part, collective rights, rights to act in concert with one’s fellow employees; they are protected not for their own sake but as an instrument of the national labor policy of minimizing industrial strife “by encouraging the practice and procedure of collective bargaining.” 29 U. S. C. § 151.
The Court went on to observe that “[c]entral to the policy of fostering collective bargaining, where the employees elect that course, is the principle of majority rule.” Id. at 62. This principle “extinguishes the individual employee’s power to order his own relations with his employer and creates a power vested in the chosen representative to act in the interests of all employees.”20 Clearly, then, the “strong foundation,” to use the dissent’s term, of the Section 7 right to representation by a coworker at an investigatory interview is premised upon the presence of a union in the workplace and the right of access
