Epilepsy Foundation

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