1 Epilepsy Foundation Does the Weingarten right extend to employees who are not covered by a collective agreement? May an employer discipline a non-exclusively represented (nonunion) employee (for insubordination) because that employee refuses to attend without a co-worker an investigatory interview that the employee reasonably believes may result in discipline?

2 Epilepsy Foundation (cont.) Previous post-Weingarten decisions –Materials Research (’82) – Sec. 7 basis makes right applicable when ees not covered by CBK –Sears (’85) – Act does not permit Weingarten rights for nonunion ees variation in scope of Sec. 7 rights depending on un. 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 Epilepsy Foundation (cont.) Truesdale, Liebman, Fox 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 Epilepsy Foundation (cont.) Views on interests and skills of co-worker in Dupont speculative Right to seek assistance has no meaning if er has no commensurate obligation Ees not obligated to request co-worker involvement Application of case to Epilepsy Foundation –Retroactivity principle – no “manifest injustice” Er did not rely on NLRB case law Sec. 7 rights of ee Purposes of Act not furthered by depriving ee of a job Other 8(a)(1) violations –Discharge motivated in part by memos concerning TCE

5 Epilepsy Foundation (cont.) Dissent (Hurtgen) –No industrial strife or judicial rejection of Sears –Limiting right of er to deal individually with non-exc. repped ees –Ees have right to seek assistance but er should not be required by law to accede to what ee seeks –No collective agreement or grievance/arbitration procedure to administer –Employer in a nonunion setting makes judgment on whether co-worker presence will impair investigation no role for government

6 Epilepsy Foundation Dissent (Braeme) –Weingarten right is the right to have a union representative Facts of Weingarten –Act does not permit Weingarten rights for nonunion ees back to Sears –Creates an area where nonunion ers forced to deal collectively with ees in violation of NLRA Should be no special treatment for discipline vis-à-vis any other TCE

7 DC Circuit Enforced with respect to reasoning Denied with respect to –retroactive application of remedy Er could rely on state of law at time of its decision –Employee Hasan Discharged for insubordination No link to protected activity