IBM Corp.

National Labor Relations Board - Board Decisions

Jun 9, 2004

341 N.L.R.B. 1288 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1288
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, vio-
lated Section 8(a)(1) of the Act by denying the Charging
Parties’ requests to have a coworker present during in-
vestigatory 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 co-
worker.
The Respondent urges the Board to overrule Epilepsy
Foundation and return to the principles of E. I. du Pont
& 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 investiga-
tory 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 rea-
sons 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 rul-

1 On September 25, 2002, Administrative Law Judge George Carson
II issued the attached decision. The Respondent filed exceptions and a
supporting brief.
On March 6, 2003, the Board granted the joint request of LPA, Inc.,
The Equal Employment Advisory Council, Associated Builders and
Contractors, the Chamber of Commerce of the United States, the Soci-
ety for Human Resource Management, the International Mass Retail
Association, and the National Association of Manufacturers, to file an
amicus brief and accepted the brief that accompanied the request.
On March 19, 2003, the Board granted the request of the Council on
Labor Law Equality (COLLE) to file an amicus brief and accepted the
brief that accompanied the request.
On April 4, 2003, Wal-Mart Stores, Inc. filed a response in support
of briefs amici curiae and a request for oral argument. The request for
oral argument is denied as the record, exceptions, and briefs adequately
present the issues and the positions of the parties.
ings, findings,2 and conclusions only to the extent con-
sistent herewith and to dismiss the complaint in its en-
tirety.
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 Charg-
ing 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 em-
ployee’s request to have a coworker present during the
interview. All three employees were discharged ap-
proximately 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 Weingar-
ten right to have a witness present during an investiga-
tory interview that the employees reasonably believed
might result in discipline. Applying Epilepsy Founda-
tion, the judge concluded that the Respondent violated
Section 8(a)(1) of the Act by denying the Charging Par-
ties’ 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 Epi-
lepsy Foundation and return to prior Board precedent
that Weingarten rights apply only to unionized employ-
ees. The Respondent asserts that the Board’s decision in
du Pont 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 be-
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 All subsequent dates are in 2001 unless indicated otherwise.
4 There is no issue concerning the Respondent’s discharge of the
Charging Parties.
341 NLRB No. 148
IBM CORP. 1289
tween an employer and its employees; and cannot facili-
tate the interview process in the same way as a union
representative. The Respondent further asserts that ex-
tending the Weingarten right to a nonunion setting may
compromise the confidentiality of sensitive employment
information obtained during an interview, as well as in-
terfere with an employer’s ability to conduct an effective
fact-finding investigation.
The joint amici curiae contend that the Epilepsy Foun-
dation 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 dur-
ing 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 Re-
spondent 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 nonunion-
ized workplace.
Analysis and Conclusions
After careful reexamination of the rationale of Epi-
lepsy Foundation, we find that national labor relations
policy will be best served by overruling existing prece-
dent and returning to the earlier precedent of du Pont,
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 Re-
quires the Board to Choose Between two Permissible
Interpretations of the Act
We agree with the Board’s conclusion in du Pont, 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 construc-
tion of the Act, and that a holding that they do apply is
also a permissible construction. In its decision remand-
ing the case to the Board, the Third Circuit rejected the
Board’s conclusion in du Pont I, 274 NLRB 1104
(1985), and Sears, Roebuck & Co., 274 NLRB 230
(1985), that the Act compelled the finding that Weingar-
ten rights do not extend to the nonunionized workplace.
Slaughter v. NLRB, 794 F.2d 120 (3d Cir. 1986). The
court found that the Board had erred in reasoning that the
right to have a representative at an investigatory inter-
view 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 stand-
ing for the proposition that Section 7 rights are circum-
scribed 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 Sec-
tion 7 rights of non-unionized employees.” Id. at 127.
The court concluded that under the reasoning of Wein-
garten, “it is at least permissible to interpret Section 7 as
guaranteeing union members and unorganized employees
alike the right to a representative at investigatory inter-
views.” Id. at 127. The court remanded the case to the
Board for further consideration of alternative grounds for
its position.
On remand in du pont, the Board adopted the court’s
view that the statute did not compel the conclusion that
Weingarten rights do not apply in a nonunionized work-
place, 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 sup-
ported by significant policy considerations.
We agree with the Board’s position on remand in
du Pont, and find that the Board’s decision in that case is
a permissible interpretation of the Act. By the same to-
ken, we acknowledge that the Board’s decision in Epi-
lepsy Foundation extending the Weingarten right to the
nonunionized workplace is also a permissible interpreta-
tion of the Act. Because there is Board precedent in this
area presenting two permissible interpretations of the

5 Sec. 9(a) provides:
“Representatives designated or selected for the purposes of collective
bargaining by the majority of the employees in a unit appropriate for
such purposes, shall be the exclusive representatives of all the em-
ployees in such unit for the purposes of collective bargaining in re-
spect to rates of pay, wages, hours of employment, or other conditions
of employment: Provided, That any individual employee or a group
of employees shall have the right at any time to present grievances to
their employer and to have such grievances adjusted, without the in-
tervention of the bargaining representative, as long as the adjustment
is not inconsistent with the terms of a collective-bargaining contract or
agreement then in effect: Provided further, That the bargaining repre-
sentative has been given opportunity to be present at such adjust-
ment.”
6 The du Pont Board expressly overruled Sears, Roebuck & Co., 274
NLRB 230 (1985), which had found the Act compelled the limitation of
Weingarten to unionized workplaces. 289 NLRB 628 fn. 8.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1290
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 overarch-
ing 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 interpre-
tation set out in du Pont, we engage in a process both
anticipated and approved by the Supreme Court in Wein-
garten. There, the Court noted that the Board had over-
ruled its earlier precedent by recognizing the right of an
employee to refuse to submit, without union representa-
tion, to an investigatory interview that the employee rea-
sonably 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 decisionmaking to do so. Thus the
Court stated:
“Cumulative experience” begets understanding and in-
sight 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 liti-
gation permits, differentiates perhaps more than any-
thing 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, adher-
ence 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 secu-
rity concerns raised by incidents of national and work-
place violence.
Our consideration of these features of the contempo-
rary 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 represen-
tative present during an investigatory interview begins
with the Supreme Court’s decision in Weingarten. The
Supreme Court there held that an employer violates Sec-
tion 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 protec-
tion. 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 imbal-
ance of power between labor and management and that
“[r]equiring a lone employee to attend an investigatory
interview . . . perpetuates the inequality the Act was de-
signed to eliminate, and bars recourse to the safeguards
the Act provided. . . .” Weingarten, 420 U.S. at 262.
Additionally, the Court observed that because an em-
ployee attending an interview by himself may not have
the wherewithal to protect or defend himself, a “knowl-
edgeable union representative could assist the employer
by eliciting favorable facts, and save the employer pro-
duction time by getting to the bottom of the incident oc-
casioning 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 repre-
sentation at interviews.
Weingarten did not address the situation in which an
employee of a nonunionized employer asks for a co-
worker to be present as his representative at an investiga-
tory 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 em-
ployees 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 em-
ployee’s collective-bargaining representative. Thus, the
Board concluded that the Weingarten right does not de-
pend on whether the employees are represented by a un-
ion.
The Board abandoned that position in Sears, Roebuck
& Co., 274 NLRB 230 (1985), finding instead that Wein-
garten rights do not apply in the absence of a certified or
recognized union. The Board rejected the Materials Re-
search position that Weingarten rights are based on Sec-
tion 7 of the Act and concluded that to award unrepre-

IBM CORP. 1291
sented 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. du Pont &
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 “per-
missible” 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 en-
tire work force as does a union representative, he is less
likely to “safeguard” the interests of the entire work
force. Second, the Board noted that an employee repre-
sentative, 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 bal-
ance, the interests of labor and management were better
served by “declining to extend” the Weingarten right to a
nonunion setting. Du Pont, 289 NLRB at 629–630.
DuPont remained the law for 12 years until it was
overruled in Epilepsy Foundation. The Board in Epi-
lepsy Foundation emphasized that the right to representa-
tion 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 depend-
ent 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 du Pont, that coworker representatives do not repre-
sent 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 inter-
view 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 teach-
ing 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 in-
dustrial 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 require-
ments 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 in-
stances 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 ex-
pressed in du Pont 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 en-
tire work force. In Weingarten, the Supreme Court em-
phasized 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 rep-
resentative and the union has delegated to its officials the
authority to act on its behalf for the entire unit. The un-
ion’s officials are bound by the duty of fair representa-
tion to represent the entire unit. Whatever the union rep-
resentative accomplishes inures to the benefit of the en-
tire 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 repre-
sent, 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 repre-
sentative. 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1292
Moreover, a coworker does not have the same incentive
to serve the interests of the group as does a union repre-
sentative. 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 be-
yond 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 accus-
tomed to dealing with the employer on a regular basis
concerning matters other than those prompting the inter-
view. Their ongoing relationship has the benefit of aid-
ing in the development of a body of consistent practices
concerning workplace issues and contributes to a speed-
ier and more efficient resolution of the problem requiring
the investigation.
This is not true in a nonunion setting. Unlike a un-
ion 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 repre-
sentative’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 rec-
ognized the unique skills that a union representative
brings to an investigatory interview: a “knowledgeable”
union representative can facilitate the interview by “elic-
iting favorable facts,” clarifying issues, and eliminating
extraneous material, all of which save the employer valu-
able production time. Weingarten, 420 U.S. at 263. A
union representative is accustomed to administering col-
lective-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 experi-
ence allows him to propose solutions to workplace issues
and thus try to avoid the filing of a grievance by an ag-
grieved employee.
A coworker is unlikely to bring such skills to an inter-
view primarily because he has no experience as the statu-
tory representative of a group of employees. It is likely
that a coworker is chosen out of some personal connec-
tion 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 mat-
ters, could actually frustrate or impede the employer’s
investigation because of his personal or emotional con-
nection to the employee being interviewed.
Finally, an employee being interviewed may request as
his representative a coworker who may, in fact, be a par-
ticipant 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 in-
volved 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 consid-
erations relevant to a nonunion work force. The critical
difference between a unionized work force and a nonun-
ion 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 con-
demn direct contacts between a unionized employer and
employees.8 Our point is that, prior to Epilepsy, a non-
union 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 deci-

7 Although the Respondent raised the coconspirator issue in the in-
stant case, the record shows that the Respondent, at the time it denied
the employees’ requests, did not know that each of the employees being
investigated intended to call each other to be witnesses in their respec-
tive individual interviews.
8 The Board holds that “direct dealing, by its very nature, improperly
affects the bargaining relationship.” American Pine Lodge Nursing,
325 NLRB 98, 99 (1997).

IBM CORP. 1293
sions, to provide their workers with safe and secure
workplace environments. A relatively new fact of indus-
trial 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 pro-
vide 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, sabo-
tage, and embezzlement.
Employer investigations into these matters require dis-
cretion and confidentiality.9 The guarantee of confiden-
tiality helps an employer resolve challenging issues of
credibility involving these sensitive, often personal, sub-
jects. The effectiveness of a fact-finding interview in
sensitive situations often depends on whether an em-
ployee is alone. If information obtained during an inter-
view 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 in-
ability 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 mis-
use the information obtained in an employee interview.10
A union representative’s fiduciary duty to all unit em-
ployees helps to assure confidentiality for the employer.
A coworker, however, is under no similar legal con-
straint. 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 repre-
sentative 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 af-
fected, it also interferes with an employer’s ability to
conduct an effective internal investigation. The possibil-
ity 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 like-
lihood that employees with information about sensitive
subjects will not come forward.

9 Even without statutorily-required investigations, employers are re-
quired to keep employee information confidential. For example, an
employer may not release information about an employee’s health
without authorization.
10 The duty of fair representation requires that a union “exercise its
discretion with complete good faith and honesty.” See Marquez v.
Screen Actors Guild, 525 U.S. 33, 44 (1998), quoting Vaca v. Sipes,
386 U.S. 171 (1967).
To be sure, under Weingarten and Epilepsy, the em-
ployer can conduct the investigation without the presence
of the employee. However, in many situations, the em-
ployer 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 keep-
ing quiet the fact of the inquiry and the substance of the
questions asked. There is a danger that an assisting em-
ployee will spread the word about the inquiry and reveal
the questions, thereby undermining that employer inter-
est.
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 un-
ion representative with fiduciary obligations and a con-
tinuing 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 un-
ionized setting necessarily means that the Weingarten
right must either be available in both unionized and non-
unionized workplaces, or it must be foreclosed in both
workplaces. Such reasoning is contrary to the conclu-
sions of the Third Circuit in Slaughter, the D.C. Circuit
in Epilepsy, and the Board’s decision in du Pont (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 inter-
pretations 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 obliga-
tion to construe the Act in a manner which best effectu-
ates the policies of the Act. With that responsibility in
mind, we have considered the entire record in this pro-
ceeding, 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 as-
sessed the “changing patterns” and “complexities” of
industrial life.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1294
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 investiga-
tions. It is our opinion that limiting this right to employ-
ees in unionized workplaces strikes the proper balance
between the competing interests of the employer and
employees.
We recognize, as did the du Pont Board, that the par-
ties 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 inde-
pendent 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 to-
day’s statutory schemes, foregoing the employee inter-
view 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 in-
complete 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 informa-
tion.
As we stated in du Pont, we do not deny that “an em-
ployee 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.” Du Pont, 289 NLRB at 630. Our deci-
sion today, however, does not leave employees without
recourse to other procedures which provide a measure of
due process in the nonunionized workplace. For exam-
ple, 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 retribu-
tion.
We reaffirm what the Board stated earlier in du Pont
when it declined to extend the Weingarten right to non-
unionized employees:

[W]hile nothing in Weingarten inexorably precludes us
from extending the right, we are confident that in carry-
ing 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. [du Pont, 289
NLRB at 630–631.]

Our dissenting colleagues launch an attack on what
they perceive to be our position. However, the dissent-
ers’ 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 repre-
sentation; 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. du Pont & 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 employ-
ees.
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 fur-
ther a reasonable analysis of the issue before us. We will
nonetheless respond. We simply observe that some em-
ployers, faced with security concerns that are an out-
growth 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 em-
ployer is not required to “bargain” with the involved em-
ployees and his assisting employee. However, our point
is a narrower one. Under that case, the nonunion em-
ployer 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 distin-
guishes them from unionized employers. We would pre-

IBM CORP. 1295
serve 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 em-
ployers.
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 em-
ployee’s request for assistance. Thus, there would be
some cases where the employer’s need for private inves-
tigation 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 litiga-
tion, 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 pre-
sent 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 resolu-
tion (ADR) mechanisms have become increasingly
common. But, the significant point is that these mecha-
nisms 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 it-
self overturned 15 years of solid precedent in Sears and
du Pont. 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 inter-
views the Respondent conducted on October 23. Ac-
cordingly, we dismiss the complaint.
ORDER
The complaint is dismissed.

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 pres-
ence 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 9(a) bar-
gaining representative.
The Board’s decision to the contrary in Epilepsy
sheared Weingarten from its historical, factual and ana-
lytical roots; infringed upon recognized and fundamental
common law management prerogatives; and ignored ex-
tant Board precedent that requires actual proof—rather
than presuming its existence—of activity which is both
“concerted” and “for mutual aid and protection” to qual-
ify for protection under Section 7. Consequently, Epi-
lepsy 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 Sec-
tion 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

1 331 NLRB 676 (2000), enfd. in relevant part 268 F.3d 1095 (D.C.
Cir. 2001), cert. denied 536 U.S. 904 (2002).
2 NLRB v. J. Weingarten, Inc. (Weingarten), 420 U.S. 251 (1975).
3 Sears, Roebuck & Co., 274 NLRB 230 (1985). In Sears, a Board
majority found that principles embodied in Secs. 9(a) and 8(a)(5) of the
Act compelled the limitation of the Weingarten right to the unionized
workplace.
4 E. I. du Pont & Co., 289 NLRB 627 (1988). In E. I. du Pont &
Co., 274 NLRB 1104 (3d Cir. 1985), the Board applied the rationale of
Sears (see fn. 3 above) to find that the Act compelled a finding that
unrepresented employees are not entitled to Weingarten rights. On
review, the Third Circuit rejected the Sears rationale, found that the
Weingarten right was grounded in Sec. 7 of the Act, and determined
that the extension of Weingarten rights to unrepresented employees
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1296
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 inter-
view. The Board premised its decision on an employee’s
Section 7 right “to bargain collectively through represen-
tatives 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 Su-
preme Court:

Section 7 of the National Labor Relations Act guaran-
tees 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 pro-
tects the right of employees to present grievances to the
employer through their union representative. Indeed,
the court below acknowledged that an employee is enti-
tled to union representation when the employer has de-
cided “to impose disciplinary measures upon the em-
ployee,” for otherwise “grievance hearings later on
would merely put the seal on the employer’s prejudg-
ment” (citation omitted). The issue here is whether
Section 7 also entitles the employee to union represen-
tation 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 inter-
pretation as “a permissible construction of ‘concerted
activities for . . . mutual aid or protection’ by the agency
charged by Congress with enforcement of the Act.”

represented at least a permissible interpretation of the Act. Slaughter v.
NLRB, 794 F.2d 120 (1986). On remand, the Board overruled Sears
and “recogniz[ed] that the Act might be amenable to other interpreta-
tions.” 289 NLRB at 628. However, the Board declined to extend
Weingarten rights to the nonunion setting, holding that “an employee in
a nonunionized workplace does not possess a right under Section 7 to
insist on the presence of a fellow employee in an investigatory inter-
view[.]” Id.
While I agree with the Third Circuit that the Weingarten right is
grounded in Sec. 7 of the Act, I find for the reasons set out herein that
the limitation of the Weingarten right to the unionized workplace is the
preferable interpretation 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 sub-
mit 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 “con-
frontation with his employer” was engaging in “con-
certed activities for the purpose of . . . mutual aid or pro-
tection” 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 im-
posing punishment unjustly. The representative’s pres-
ence is an assurance to other employees in the bargain-
ing 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 invoca-
tion of a right contained in a collective-bargaining
5 That the right the Court was affirming was the right to a 9(a) repre-
sentative is evident from the Court’s description of the “contours and
limits of the statutory right” found by the Board. The Court said, in
part, as follows: “First, the right inheres in Section 7’s guarantee of the
right of employees to act in concert for mutual aid and protection.” The
Court followed with a discussion of Mobil Oil Corp., 196 NLRB 1052
(1972), in which the Board referred to an employee’s “right to union
representation upon request” and “the assistance of his statutory repre-
sentative.” “Second, . . . the employee may forego his guaranteed right
and, if he prefers, participate in an interview unaccompanied by his
union representative.” “Third, [the employee’s request is limited to a
pre-disciplinary interview.]” “Fourth, exercise of the right may not
interfere with legitimate employer prerogatives.” The Court then dis-
cussed the employee’s right to refrain from participating in the inter-
view “without his chosen agent” and the employer’s right to forego the
interview. “Fifth, the employer has no duty to bargain with any union
representative who may be permitted to attend the investigatory inter-
view. The Board said in Mobil, ‘we are not giving the Union any par-
ticular rights with respect to pre-disciplinary discussions which it oth-
erwise was not able to secure during collective bargaining negotia-
tions.’” 420 U.S. at 256–260.
6 Interboro Contractors, 157 NLRB 1295, 1298 (1966), enfd. 388
F.2d 495 (2d Cir. 1967).

IBM CORP. 1297
agreement to be concerted activity for mutual aid or pro-
tection. The Supreme Court affirmed the Interboro doc-
trine 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 en-
forcement of the agreement—is a single, collective ac-
tivity. Obviously, an employee could not invoke a
right grounded in a collective-bargaining agreement
were it not for the prior negotiating activities of his fel-
low employees. . . . Moreover, when an employee in-
vokes 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 inter-
view “perpetuates the inequality the Act was designed to
eliminate, and bars recourse to the safeguards the Act
provided ‘to redress the perceived imbalance of eco-
nomic 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 iso-
lated wage earner caught in the complex of modern in-
dustrialism. . . . ” 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 ine-
quality which the Act denounces, and to bar recourse
to the very means which the Act safeguards to over-
come 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 na-
ture of the employee representative to which the Wein-
garten right guarantees access. According to the Court,
“a knowledgeable union representative” intimately famil-
iar 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 po-
tentially frivolous grievances at an early stage. 420 U.S.
at 263–264. Quoting approvingly from arbitrators’ deci-
sions in Independent Lock Co.,7 and Caterpillar Tractor
Co.,8 the Court found the Board’s construction of Sec-
tion 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 statu-
tory 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 collec-
tive-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 indus-
trial practices extant in union settings, its repeated refer-
ences to the role of the 9(a) representative in protecting
the interests of the entire bargaining unit, and its discus-
sion of the rights flowing from collective bargaining, it is
difficult to reconcile the Court’s decision with the Epi-
lepsy Board majority’s claim that the language of Wein-
garten is misconstrued if restricted to the unionized
workplace. The majority opinion in Epilepsy, however,

7 30 LA 744 (1958). In Independent Lock Co., the arbitrator said
that the “[participation by the union representative] might reasonably
be designed to clarify the issues at this first stage of the existence of a
question, . . . give assistance to employees who . . . might in fact need
the more experienced kind of counsel which their union steward might
represent [and] [t]he foreman, himself, may benefit from the presence
of the steward by seeing the issue, the problem, the implications of the
facts, and the collective-bargaining clause in question more clearly.”
Id. at 746.
8 44 LA 647 (1965). In Caterpillar Tractor Co., the arbitrator ex-
plained: “The presence of the union steward is regarded as a factor
conducive to the avoidance of formal grievances through the medium
of discussion and persuasion conducted at the threshold of an impend-
ing grievance.” Id. at 651.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1298
brushes past 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 con-
certed 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 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 agree-
ment thus “calls into being a new common law—the
common law of a particular industry or of a particular
plant.” Steelworkers v. Warrior & 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 em-
ployees “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 collec-
tive-bargaining agreements as provided and made ef-
fective 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 em-
ployer and the employee.

U.S. 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 im-
plicated 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 em-
ployer from retaliating against employees for engaging
in protected concerted activities such as the presenta-
tion of grievances, it is also clear that generally an em-
ployer 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 em-
ployer 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 investi-
gatory interview unless management accedes to the em-
ployee’s insistence upon the presence of a coworker con-
travenes this established law.9 Such an extension of
Weingarten also conflicts with settled Board precedent
that employees cannot unilaterally dictate a term or con-
dition 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 unilat-
erally placed the company on a 9-hour workday. In re-
sponse, the union resorted to self-help by having the em-
ployees 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 employ-
ees 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 do-
ing 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 un-
ion to do what we would not allow any employer to do,
that is to unilaterally determine conditions of employ-
ment. Such a result would be foreign to the policy ob-
jectives of the Act.

110 NLRB at 1594–1595.

Similarly, in Bird Engineering, 270 NLRB 1415
(1984), the Board held that several employees who di-
rectly defied management’s warnings and direction by
ignoring the employer’s lunchbreak rule were engaged in

9 The Court has cautioned that in interpreting the Act it is “essential”
to afford “due protection . . . [to] the employer’s right to manage his
enterprise.” American Ship Building Co. v. NLRB, 380 U.S. at 309
(citations omitted).

IBM CORP. 1299
unprotected insubordination, despite the “concerted ele-
ment” in their actions. Id. at 1415. As the Board ex-
plained: “These employees were attempting both to re-
main on the job and to determine for themselves which
terms and conditions of employment they would ob-
serve.” Id.
A nonunion employee’s refusal to participate in a pre-
disciplinary 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 insubordi-
nation 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 man-
agement 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 por-
tion 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 in-
terview also greatly enhances the employees’ opportu-
nities to act in concert to address their concern “that the
employer does not initiate or continue a practice of im-
posing punishment unjustly.”

331 NLRB at 678 (footnote omitted). However, as dis-
cussed above, the Weingarten Court’s analysis was set in
the context of a unionized shop and the existence of a col-
lective-bargaining agreement and the employee’s 9(a) rep-
resentative. For the Court, the nature of the 9(a) representa-

10 331 NLRB at 678.
tive—as the product of collective action and the link to “the
interests of the entire bargaining group”—made the em-
ployee’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 Sec-
tion 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 in-
terview. The evidentiary requisites of concertedness and
mutuality simply cannot be satisfied under the presump-
tive Epilepsy rationale that the right “enhances the em-
ployees’ 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 em-
ployee’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 sec. III,B below). Addi-
tionally, the Epilepsy Board never explained why in the
absence of a collective-bargaining agreement creating a
“new common law” of the shop, a nonunionized em-
ployer forfeits its common law right to deal with its em-
ployees 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 Weingar-
ten Court did not address the situation of a lone em-
ployee’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 envi-
ronment. 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 depend-
ent 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
11 The Epilepsy Board relied upon Glomac Plastics, Inc., 234 NLRB
1309 (1978). In Glomac, the employer was found to have violated Sec.
8(a)(5) by refusing to bargain in good faith with the union thereby
“foreclos[ing] its employees from enjoying any of the benefits of col-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1300
not fulfilled when controlling law and evidentiary re-
quirements are ignored because “the purpose of the activ-
ity [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 collec-
tive action and link to “the interests of the entire bargain-
ing group” converted an otherwise individualized con-
cern 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 concerted-
ness[.]”12

lective bargaining and in particular deprived them of the ‘aid or protec-
tion’ of union representation.” 234 NLRB at 1311. Under these cir-
cumstances, the Board found the employer violated Sec. 8(a)(1) by
refusing to permit an employee to have a fellow employee, a union
negotiating committee member, present at a predisciplinary interview.
The Board concluded that “Section 7 rights are enjoyed by all employ-
ees and are in no wise dependent on union representation for their
implementation.” Id. With respect to the right to have the presence of
the union negotiating committee member, the Board relied on a foot-
note comment in Justices Powell and Stewart’s dissent in Weingarten,
wherein they cautioned the majority that as a result of the right it was
affording employees in a union setting “to act ‘in concert’” in employer
interviews, “it must be assumed that the Sec. 7 right . . . also exists in
the absence of a recognized union.” Id., quoting Weingarten, 420 U.S.
at 270 fn. 1. The Board’s conclusion that the Sec. 7 rights of nonunion
employees are necessarily coextensive with the Sec. 7 rights of union
employees is of questionable validity particularly in light of the Su-
preme Court’s decision in City Disposal, supra, 465 U.S. 822. Further,
the Weingarten dissenters’ cautionary remark was just that and cannot
fairly be relied upon as proof for that about which they were warning.
12 Immediately prior to making this statement, the Ontario Knife
court observed:
[t]hat the Weingarten decision deals only with the question of what ac-
tivities are properly for “mutual aid or protection” was made clear by
the Court’s approving quotation, 420 U.S. at 261, 95 S.Ct. at 965, of
our opinion in NLRB v. Peter Cailler Kohler Swiss Chocolates Co.,
Inc., 130 F.2d 503, 505–06 (2d Cir. 1942), that:
When all the other workmen in a shop make common
cause with a fellow workman over his separate grievance, and
go out on strike in his support, they engage in a ‘concerted
activity’ for ‘mutual aid or protection,’ although the ag-
grieved workman is the only one of them who has any imme-
diate stake in the outcome. The rest know that by their action
each of them assures himself, in case his turn ever comes, of
the support of the one whom they are all then helping; and the
solidarity so established is ‘mutual aid’ in the most literal
sense, as nobody doubts. Id.
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 deci-
sion (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 inter-
view 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 con-
certed in nature if they relate to conditions of employ-
13 In Alleluia, an employee was discharged after reporting his em-
ployer’s safety violations to the state OSHA office and accompanying
an OSHA inspector on a tour of the plant to point out the alleged viola-
tions. The employee acted individually, and no union represented the
workers at the plant. Contrary to the administrative law judge, who
recommended dismissal of the complaint because there was no outward
manifestation of group action, the Board held that a lone employee’s
invocation of a statutory safety right designed for the benefit of all
employees will be “deemed” to be concerted “in the absence of any
evidence that fellow employees disavow such representation.” 221
NLRB at 1000. Thus, the Board relieved the General Counsel of his
burden of proving group action when the activity in question related to
a matter potentially of common concern to employees.

IBM CORP. 1301
ment that are matters of mutual concern to all the af-
fected 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 em-
ployee [in the nonunion setting] is also concerted activ-
ity—in the most basic and obvious form—since employ-
ees are seeking to act together [for mutual aid or protec-
tion].” 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 accom-
panying 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

14 In Air Surrey, the Board found that an individual employee’s
(Patton’s) action in inquiring at respondent’s bank as to whether re-
spondent had sufficient funds on deposit to meet its upcoming payroll
constituted protected activity under the Board’s holding in Alleluia
Cushion. Having reached this conclusion, the Board found it unneces-
sary “to pass upon the [judge’s] alternative rationale that Patton’s visit
to the bank was protected because he was, in fact, acting in concert
with the other employees.” Id. at 264. On review, the Sixth Circuit
found that Patton was acting in concert with other employees when he
made his inquiries at the bank but that the respondent did not know of
the concerted nature of Patton’s actions when it discharged him. Ap-
plying the law of the circuit, the court denied enforcement on the
ground that an employer cannot be held to have violated Sec. 8(a)(1)
for conduct which may be protected under the Act when “the employer
lacks knowledge of its protected character.” Air Surrey Corp. v. NLRB,
601 F.2d at 257.
15 The dissent relies on this language from Materials Research as
support for its position that a “notion of solidarity” evidences concerted
activity. The dissent then notes that “[t]his notion of solidarity . . . is
basic to the Act,” as explained in the Second Circuit’s decision in
NLRB v. Peter Cailler Kohler Swiss Chocolates, Inc., 130 F.2d 503,
505 (1942). In support, the dissent, at fn. 12, quotes the very language
from the Kohler decision that is set out above at fn. 12 of my concur-
rence.
But that the purpose of the conduct at issue is employee solidarity
only answers the question of whether the conduct is for mutual aid or
protection. It does not answer the question of whether the conduct is
concerted. Therefore, by its argument here, the dissent only empha-
sizes that it is applying the Alleluia Cushion definition of concerted
activity to find that the conduct at issue here is concerted, i.e., the pur-
pose of the conduct (employee solidarity) evidences that the conduct is
concerted. Given the Meyers I and II definition of concerted activity
set out below, this argument must fail.
16 In the underlying case, Bighorn Beverage, 236 NLRB 736 (1978),
the Board adopted the judge’s finding that the respondent unlawfully
discharged employee Mortensen for filing a complaint about excessive
carbon monoxide with the state of Montana’s Department of Health and
Environmental Sciences. Although the judge concluded that Mortensen
acted alone in making the complaint, he nevertheless found that “the
In Krispy Kreme Doughnut Corp. v. NLRB, 635 F.2d
304 (4th Cir. 1980), the Fourth Circuit also rejected the
Board’s attempt to extend the doctrine of presumed con-
certed 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 con-
stitutes protected ‘concerted activity’[.]” Id. at 306. Re-
versing 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 re-
jected 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 thresh-
old 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, 281
NLRB 882 (1986) (Meyers II), affd. 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

nature of Mortensen’s complaint to the Department of Health and Envi-
ronmental Sciences was not merely a matter of his own personal con-
cern [but] involved a safety problem of common concern to all persons
who were then working at the [r]espondent’s facility.” Id. at 752 (em-
phasis added). On this basis, the judge, relying on Alleluia Cushion,
supra, concluded “that Mortensen was engaged in a protected concerted
activity under the Act in making his complaint to a state agency regard-
ing safety conditions at the [r]espondent’s facility.” Id. at 753.
17 In Krispy Kreme Doughnut Corp., 245 NLRB 1053, 1053 (1079),
the Board agreed with the judge that the Board’s recent decision in Self
Cycle & Marine Distributor Co., 237 NLRB 75 (1978), was controlling
and found the violation on that basis. As the Board explained:

In Self Cycle, the Board found that respondent violated Section
8(a)(1) by discharging an employee for pursuing an unemployment
compensation claim. In so finding the Board observed that the matter
of unemployment compensation benefits arises out of the employment
relationship and is of common interest to other employees. Thus, by
refusing to withdraw an unemployment compensation claim an em-
ployee refuses to allow the employer to deny that employee, and by
way of example other employees, access to the State’s unemployment
compensation appeals procedure. The same rationale applies to the
matter of workmen’s compensation benefits. Such benefits also arise
out of the employment relationship and are of common interest to
other employees. Similarly, [the discriminatee’s] refusal to forebear
from filing a claim opposes Respondent’s attempt to deny him and
other employees access to workmen’s compensation benefits.
Id. (emphasis added).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1302
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 employ-
ees, 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 doc-
trine, the Board has properly recognized that Section 7
requirements of “concertedness” and “mutual aid or pro-
tection” 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 footnote 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 initi-
ate or to induce or to prepare for group action.’” Id. at
887. Although the dissent would read this statement lit-
erally 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 Transporta-
tion [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 consti-
tute concerted activity “although it involves only a
speaker and a listener[.]” Mushroom Transportation,
330 F.2d at 685. As Judge Bork explained in his dissent-
ing 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 Trans-
portation 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 investi-
gatory interview is neither an “‘interaction’ among em-
ployees” 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 be-
fore its Epilepsy decision, the Epilepsy Board neverthe-
less 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 pun-
ishment 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 pre-
sumed 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 total-
ity 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

18 I recognize that the D.C. Circuit accepted the Epilepsy Board ma-
jority’s conclusion that an individual employee’s assertion of the Wein-
garten right in a nonunionized workplace may constitute concerted
activity within the meaning of Sec. 7. Epilepsy Foundation of North-
east Ohio v. NLRB, 268 F.3d 1095, 1100 (D.C. Cir. 2001). The court,
however, did not address the question of why, contrary to the Board’s
holding in Meyers II, a shared interest should be presumed when an
individual employee insists on the presence of a coworker in a nonun-
ion environment where there is no collective-bargaining agreement or
9(a) representative to establish the requisite link to group action. This
is likely due to the fact that the Board majority in Epilepsy failed to
address this extant Board law.
19 Assuming arguendo that the Weingarten right may properly be ex-
tended to the nonunion workplace, it is possible that an employee’s
insistence on the presence of a coworker at an investigatory interview
may constitute protected concerted activity under some circumstances.
However, that will not always be the case. See, e.g., E. I. du Pont &
Co. v. NLRB, 707 F.2d 1076, 1077–1079 (9th Cir. 1983) (mere request
for presence of another employee cannot be presumed to meet the re-
quirement of concert).

IBM CORP. 1303
most consistent with the language and policies of the Act
is that the Weingarten right is unique to employees rep-
resented by a 9(a) bargaining representative. An exami-
nation of the dissent’s response only confirms the wis-
dom 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 mis-
stating 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 defini-
tion 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’ criti-
cisms, I will now address their arguments.
A. Extension of the Weingarten Rationale to the Nonun-
ion Setting Lacks a “Strong Foundation” in the Act
In support of its own position that the presumed Sec-
tion 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 work-
places 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 fol-
lowing 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 col-
lective 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 represen-
tatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bar-
gaining 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 la-
bor policy of minimizing industrial strife “by encourag-
ing the practice and procedure of collective bargain-
ing.” 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 em-
ployee’s power to order his own relations with his em-
ployer and creates a power vested in the chosen represen-
tative 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 to the
9(a) representative.

20 NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 180 (1967) (em-
phasis added):
National labor policy has been built on the premise that by pooling
their economic strength and acting through a labor organization freely
chosen by the majority, the employees of an appropriate unit have the
most effective means of bargaining for improvements in wages, hours,
and working conditions. The policy therefore extinguishes the indi-
vidual 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1304
B. “Concert” Cannot Be Presumed
What, then, is the foundation of this presumed Section
7 right to representation in the nonunion setting? As
explained in Section III above, the existence of such a
collective right in the nonunion context depends on
whether an individual employee’s insistence upon the
presence of a coworker at an investigatory interview con-
stitutes concerted activity for mutual aid or protection.21
As relevant here, the existence of such a right depends on
whether the conduct at issue satisfies the Board’s present
definition of “concerted activity” set out in Meyers I and
II, supra. Under the definition of “concerted activity”
there set out, whether the conduct at issue is concerted is
a question of fact that must be resolved on a case-by-case
basis. Ignoring Meyers I and II, the Epilepsy Board erro-
neously applied Alleluia Cushion’s discredited definition
of concerted activity and then presumed its existence in
all cases because it found, in effect, that the nonunion
employee’s insistence on the presence of a coworker at
an investigatory interview increased employee solidarity
by “enhanc[ing]” employees’ opportunities to act in con-
cert.
The dissent only compounds this error by asserting a
strong foundation for the presumed Section 7 right to
representation in the nonunion setting without attempting
to reconcile the Epilepsy concertedness analysis with the
definition of concerted activity set out in Meyers I and II.
The impossibility of such an explanation does not excuse
its absence.
C. The Dissent Construes the Act too Broadly
Finally, having failed to establish, but persisting in its
belief, that there is a Section 7 right to representation in
the nonunion setting, the dissent accuses me of “sug-
gest[ing] that, as a statute in derogation of the common
law, [the Act] must be construed narrowly.” This be-
cause I find, as explained in Section II above, that in the
nonunion setting, and in the absence of a collective-
bargaining agreement, the common-law rights of man-

21 The dissent raises the issue of whether an employee’s mere re-
quest for the presence of a coworker at an investigatory interview in the
nonunion setting constitutes protected concerted activity. That is not
the issue presented, nor is it likely that we will encounter that issue in
the future. Rather, the issue here is whether the employee is entitled to
the presence of a coworker at the interview or, put another way,
whether the employer in the nonunion setting has the right to refuse the
request. Since any right to make the request need not be parsed sepa-
rately to resolve the issue presented, it is unnecessary to reach that issue
here. I would only add that my dissenting colleagues err when they
suggest that my position requires me to acquiesce if an employer retali-
ates against an employee for merely requesting the presence of a co-
worker at an investigatory interview. The right of an employer to deny
the request does not compel the existence of a concomitant right to
retaliate against an employee for making the request.
agement, including the right to deal with its employees
on an individual basis, must prevail over an individual
employee’s insistence on the presence of a coworker at a
predisciplinary investigatory interview.
In asserting that I construe the Act too narrowly, the
dissent accuses me of “invok[ing] the ‘common-law pre-
rogatives of management in nonunion settings.’” As set
out in Section II above, however, I did not “invoke” this
proposition, but simply observed there that “[t]he Board
[itself] 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.” Agwili-
nes, Inc. v. NLRB, 87 F.2d 146 (5th Cir. 1936), and
NLRB v. Colten, 105 F.2d 179 (6th Cir. 1939), cases re-
lied on by the dissent, are not to the contrary because
both cases arose in a union, not a nonunion, context. To
the extent that these cases support a finding that man-
agement must yield certain of its prerogatives when a
collective-bargaining agreement is in effect and there is a
9(a) representative present, they only confirm the exis-
tence of a Weingarten right in the union setting.
In maintaining the existence of a right to insist on the
presence of a coworker at an investigatory interview in
the nonunion setting, and to refuse to participate if the
employee’s request is not granted, it is the dissent that
reads the statute too broadly. It is the dissent that fails to
heed the admonition of Congress which the Second Cir-
cuit recalled in its decision in Ontario Knife Co. v.
NLRB, 637 F.2d at 843 fn. 4:

Indeed, Congress has admonished the courts and the
Board generally to be faithful to the text of the statute.
The Senate Report accompanying the NLRA states that
the “bill is specific in its terms. Neither the National
Labor Relations Board nor the courts are given any
blanket authority to prohibit whatever labor practices
that in their judgment are deemed to be unfair.” Sen.
Rep. No. 573, 74th Cong., 1st Sess. 8 (1935).

In sum, the dissent has not only failed to confirm its
belief that a right to representation exists in the nonunion
as well as the union setting, it has proven that the founda-
tion of such a presumed right in the Act is more imag-
ined than real.
CONCLUSION
The Epilepsy Board erred by overruling precedent
while skirting legal issues and adopting impermissible
presumptions. A careful analysis demonstrates that it
was the existence of the collective-bargaining agreement
in Weingarten which allowed the Supreme Court to pre-

IBM CORP. 1305
sume, if you will, concerted activity for mutual aid and
protection whenever an employee requests the presence
of the employee’s 9(a) union representative at a predisci-
plinary investigatory interview. By purporting to extend
Weingarten to the nonunion setting, the Epilepsy Board
engaged without warrant in the same presumption, ignor-
ing the case-by-case evidentiary demonstration required
under Meyers I and II. Further, the Epilepsy Board
turned a deaf ear to the link to “the interests of the entire
bargaining unit” emphasized by the Board in its argu-
ment to the Weingarten Court and the Court’s subsequent
decision. Finally, the Epilepsy Board failed to address a
nonunionized employer’s inherent rights to manage its
business as it sees fit and to deal with its employees indi-
vidually, rights left intact in the absence of a collective-
bargaining agreement and union representation.
In sum, by creating ex nihilo a Section 7 right in a
nonunion workplace to the presence of a coworker at a
predisciplinary investigatory interview, the Epilepsy
Board confused and impaired long-standing principles of
law. For these reasons, as well as for the policy consid-
erations elaborated by my colleagues, I find that it was
imprudent as a matter of policy and unwise as a matter of
law for the Board to have extended the Weingarten right
to the nonunion setting.

MEMBERS LIEBMAN AND WALSH, dissenting.
Today, American workers without unions, the over-
whelming majority of employees, are stripped of a right
integral to workplace democracy. Abruptly overruling
Epilepsy Foundation of Northeast Ohio, a recent decision
upheld on appeal as “both clear and reasonable,”1 the
majority holds that nonunion employees are not entitled
to have a coworker present when their employer con-
ducts an investigatory interview that could lead to disci-
pline.
Under Section 7 of the National Labor Relations Act,
all workers, union represented or not, have the “right to. .
. . engage in . . . concerted activities for the purpose of
. . . mutual aid or protection.”2 It is hard to imagine an
act more basic to “mutual aid or protection” than turning
to a coworker for help when faced with an interview that
might end with the employee fired. In its Weingarten
decision, the Supreme Court recognized that union-
represented workers have a right to representation.3 But
the majority rejects the same right for workers without a
union—second-class citizens of the workplace, it seems.
According to the majority, nonunion workers are not

1 Epilepsy Foundation of Northeast Ohio v. NLRB, 268 F.3d 1095,
1102 (D.C. Cir. 2001), enfg. 331 NLRB 676 (2000).
2 29 U.S.C. §157.
3 NLRB v. J. Weingarten, Inc. 420 U.S. 251 (1975).
capable of representing each other effectively and there-
fore have no right to representation. With little interest in
empirical evidence, the majority confidently says that
recognizing such a right would make it impossible for
nonunion employers to conduct effective workplace in-
vestigations and so would endanger the workplace.
Due process in the nonunion workplace should not be
sacrificed on such dubious grounds. Workers without
unions can and do successfully stand up for each other on
the job—and they have the legal right to try, whether or
not they succeed. The majority’s predictions of harm, in
turn, are baseless. There is no evidence before the Board
that coworker representatives have interfered with a sin-
gle employer investigation since Epilepsy Foundation
issued in 2000. We are told instead that everything has
changed in “today’s troubled world,” following “terrorist
attacks on our country,” the rise of workplace violence,
and an increase in “corporate abuse and fiduciary
lapses.” But allowing workers to represent each other
has no conceivable connection with workplace violence
and precious little with corporate wrongdoing, which in
any case seems concentrated in the executive suite, not
the employee cubicle or the factory floor. Finally, we
would hope that the American workplace has not yet
become a new front in the war on terrorism and that the
Board would not be leading the charge, unbidden by
other authorities.
As we will explain, the right to coworker representa-
tion, in nonunion workplaces as well as in unionized
ones, has a strong foundation in the Act. Two of our
colleagues, at least, recognize that Epilepsy Foundation
is “a permissible interpretation of the Act,” but they in-
voke “policy considerations” (which a third colleague
joins) for refusing to adhere to it. To the extent that the
majority raises any legitimate concerns, they easily can
be accommodated without abandoning that right,
which—as applied in unionized workplaces and as it
presumably would apply in nonunion workplaces—is
quite limited. Under the Board’s application of Weingar-
ten: the employer has the option to forego an interview;
the union representative may not obstruct an investiga-
tion; the right to have a witness present does not apply to
every conversation or workplace matter; and the em-
ployer has no duty to “bargain with” the representative.4
4 See Roadway Express, Inc., 246 NLRB 1127 (1979) (employer
may cancel request for interview, rather than holding it in presence of
union representative); New Jersey Bell Telephone, 308 NLRB 277
(1992) (presence of representative should not transform interview into
adversary contest or collective-bargaining confrontation); Northwest
Engineering Co., 265 NLRB 190 (1982) (employer-conducted meeting
in lunchroom did not require application of Weingarten rights). Under
current law, an employee discharged as the result of an investigatory
interview during which he was denied the right to a union representa-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1306
I.
The right to representation in nonunion workplaces has
had a surprisingly fitful history. Our colleagues now aim
to bury the right forever. “[T]he matter can now be set to
rest,” they say. We beg to differ.
In Epilepsy Foundation, the Board traced the history of
the right to representation, beginning with the Supreme
Court’s decision in Weingarten, supra, which involved
unionized workers.5 First recognized by the Board with
respect to nonunion workers in 1982 (Materials Re-
search6), the right was lost in 1985, when the Board con-
cluded that it had no statutory basis (Sears, Roebuck7).
That view was rejected—but the right was not restored—
in 1988, when the Board conceded (following an adverse
court decision) that the Act could be interpreted to grant
the right, but refused to do so (E. I. du Pont8). There the
law stood until the Board came full circle in Epilepsy
Foundation, decided in 2000 and approved by the United
States Court of Appeals for the District of Columbia Cir-
cuit the following year. That is where the Board should
have left things.
What is at stake is the Act’s guarantees for workers
who are not represented by a union, today the great ma-
jority of American workers.9 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.
As one commentator has observed, before Epilepsy
Foundation, the “scope of coverage of section 7 and its
application to nonunion employees may have been one of

tive is not entitled to reinstatement or backpay. Taracorp Industries,
273 NLRB 221 (1984).
5 Epilepsy Foundation of Northeast Ohio, 331 NLRB 676, 677–678
(2000).
6 Materials Research Corp., 262 NLRB 1010 (1982).
7 Sears, Roebuck & Co., 274 NLRB 230 (1985). The Board’s rea-
soning in Sears, Roebuck was rejected by the United States Court of
Appeals for the Third Circuit in Slaughter v. NLRB, 794 F.2d 120 (3d
Cir. 1986). Sears, Roebuck was also the target of academic criticism.
See Charles B. Craver, The National Labor Relations Act Must Be
Revised to Preserve Industrial Democracy, 34 Ariz. L. Rev. 397, 412–
413 (1992); Matthew W. Finkin, Labor Law by Boz: A Theory of
Meyers Industries, Inc., Sears, Roebuck and Co., and Bird Engineering,
71 Iowa L. Rev. 155, 177–188 (1985); Paul Alan Levy, The Unidimen-
sional Perspective of the Reagan Labor Board, 16 Rutgers L. J. 269,
286–293 (1985).
8 E.I. du Pont & Co., 289 NLRB 627 (1988). Du Pont was also re-
ceived poorly by labor law scholars. See, e.g., Charles J. Morris, NLRB
Protection in the Nonunion Workplace: A Glimpse at a General Theory
of Section 7 Conduct, 137 U. Pa. L. Rev. 1673, 1736–1749 (1989).
9 According to the Bureau of Labor Statistics, in 2003, only 8.2 per-
cent of private-sector employees were unionized. U.S. Department of
Labor, Bureau of Labor Statistics, “Union Members in 2003,” News
Release USDL 04-53 (Jan. 21, 2004).
the best-kept secrets of labor law.”10 However obscure
that coverage is, it is well established, if now endan-
gered. In Materials Research, citing decisions by the
Board, the appellate courts, and the Supreme Court itself,
the Board pointed out that:

It is by now axiomatic that, with only very limited
exceptions, the protection afforded by Section 7 does
not vary depending on whether or not the employees
involved are represented by a union, or whether the
conduct involved is related, directly or indirectly, to un-
ion activity or collective bargaining.

262 NLRB at 1012 (footnote omitted).11 The majority here,
of course, adds to those exceptions.
In contrast, we adhere to the view of the Epilepsy
Foundation Board and the Materials Research Board
before it. We believe, in other words, that the Supreme
Court’s decision in Weingarten supports the right to rep-
resentation, even in nonunion settings, because that right
is grounded in Section 7 and because the “right to have a
coworker present at an investigatory interview . . .
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 punish-
ment unjustly.’” Epilepsy Foundation, 331 NLRB at
678, quoting Weingarten, 420 U.S. at 260. As the Mate-
rials Research Board explained:

[A] request for the assistance of a fellow employee is
. . . concerted activity—in its most basic and obvious
form—since employees are seeking to act together. It
is likewise activity for mutual aid or protection: by
such, all employees can be assured that they too can
avail themselves of the assistance of a coworker in like
circumstances . . . .

262 NLRB at 1015.12

The District of Columbia Circuit, in turn, has endorsed
this reasoning. It has rejected, as “terribly shortsighted,”
the view that concerted activity is not involved here. 268
F.3d at 1100. It has described as “compelling,” the Epi-
10 William R. Corbett, Waiting for the Labor Law of the Twenty-
First Century: Everything Old Is New Again, 23 Berkeley J. Employ-
ment & Labor L. 259, 267 (2002) (footnote omitted).
11 As the Epilepsy Foundation Board put it, “Section 7 rights are en-
joyed by all employees and are in no wise dependent on union repre-
sentation for their implementation.” 331 NLRB at 678, citing Glomac
Plastics, Inc., 234 NLRB 1309, 1311 (1978).
12 This notion of solidarity, of course, is basic to the Act, as Judge
Learned Hand explained many years ago. NLRB v. Peter Cailler Koh-
ler Swiss Chocolates Co., 130 F.2d 503, 505 (2d Cir. 1942)
(“[M]ak[ing] common cause with a fellow work[er] over his separate
grievance” is the essence of employee solidarity, even if only the one
worker “has any immediate stake in the outcome”).

IBM CORP. 1307
lepsy Foundation Board’s answer to the argument that
extending Weingarten rights to nonunion workers is in
conflict with the principle of exclusive representation
embodied in Section 9(a) of the Act. Id. at 1101. And it
has labeled as “plainly meritless” any claim that Epilepsy
Foundation was inadequately explained. Id. at 1102.
The majority now eliminates the Weingarten right for
nonunion workers, leaving intact only the protection
against discharge or discipline based on the mere request
for a coworker representative.13
II.
All of our colleagues subscribe to policy arguments for
overruling Epilepsy Foundation, and we address those
arguments below. First, however, we examine the posi-
tion urged by our concurring colleague, Member
Schaumber, who strongly implies that the position taken
in Epilepsy Foundation is not just incorrect, but is im-
permissible under the Act. No other current Board
member joins that view. Its flaws are clear.
To begin, we do not understand the concurrence to rely
on the language of Section 7, which even prior Boards
opposed to the extension of Weingarten rights have ac-
knowledged is open to our interpretation. See E. I.
du pont & Co., supra, 289 NLRB at 628. Section 7’s
words, of course, admit of the possibility that “an indi-
vidual may be engaged in concerted activity when he acts
alone.” NLRB v. City Disposal Systems, 465 U.S. 822,
831 (1984). With respect to the statutory language, there
is no basis for distinguishing between an employee’s
request for a union representative and his request, in a
nonunion workplace, for a coworker’s presence. Cf.
Weingarten, supra, 420 U.S. at 260 (“The action of an
employee in seeking to have the assistance of his union
representative at a confrontation with his employer
clearly falls within the literal wording of section 7. . .”).
The heart of the concurrence is its reading of Weingar-
ten. But it is one thing to say that the Supreme Court’s
decision does not compel recognition of a right to repre-
sentation for nonunion workers, and quite another to say
that the decision prevents the Board from doing so.
Nothing in Weingarten suggests that the holding of Epi-
lepsy Foundation was not a permissible interpretation of
the Act. Indeed, the dissenting opinion in Weingarten
raised the prospect that, given the Supreme Court’s deci-
sion, the right to representation “also exists in the ab-
sence of a recognized union.” Weingarten, supra, 420
U.S. at 270 fn. 1 (dissenting opinion of Justice Powell).

13 Both before and after Epilepsy Foundation, the Board has held
that regardless of whether an employee is entitled to have a coworker
representative, the Act protects his right to ask for one. See Electrical
Workers Local 236, 339 NLRB No. 156, slip op. at 2 (2003), citing E.
I. du Pont, supra, 289 NLRB at 630 fn. 15.
Citing the Weingarten dissent, other courts have held or
suggested as much.14 The Second Circuit, for example,
has observed that the “representative right . . . must also
apply to a nonunion representative.”15
The concurrence makes the novel argument that Epi-
lepsy Foundation, and Materials Research before it,
were based on a view of concerted activity that the Board
rejected in Meyers Industries, Inc., 281 NLRB 882
(1986) (Meyers II), affd. sub nom. Prill v. NLRB, 835
F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205
(1988). The concurrence argues that in a nonunion
workplace, the Weingarten right can only be based on a
no longer viable “theory of presumed concerted activity.”
Even if our concurring colleague’s interpretation of
Meyers were correct, it would not follow that our posi-
tion is inconsistent with the Act itself. As the courts
have made clear, the Board’s Meyers doctrine may be
permissible, but the Act does not compel it.16
In any case, our colleague misreads Board precedent.
In Meyers II, supra, the Board reiterated that the “defini-
tion of concerted activity . . . encompasses those circum-
stances where individual employees seek to initiate or to
induce or to prepare for group action.” 281 NLRB at
887.17 Seeking a witness, and serving as a witness, in a
disciplinary interview obviously meets this standard.
The concurrence argues that the Epilepsy Foundation
Board erred by not considering the employee’s request
for a witness in isolation.18 On the view of our concur-
ring colleague, apparently, the employee does not act in
concert unless and until his request for a coworker wit-
ness is communicated to his fellow employee, granted by
the employer, and taken up by the coworker. This view
is “terribly shortsighted,” to borrow the District of Co-
14 See, e.g., ITT Lighting Fixtures v. NLRB, 719 F.2d 851, 855–856
(6th Cir. 1983); Anchortank, Inc. v. NLRB, 618 F.2d 1153, 1157 (5th
Cir. 1980); NLRB v. Columbia University, 541 F.2d 922, 931 (2d Cir.
1976). As discussed, the Third Circuit and the District of Columbia
Circuit have squarely held that the position taken in Epilepsy Founda-
tion is permissible.
15 Columbia University, supra, 618 F.2d at 931 fn. 5.
16 See Ewing v. NLRB, 861 F.2d 353, 359–361 (2d Cir. 1988); Prill
v. NLRB, 835 F.2d 1481, 1484 (D.C. Cir. 1987).
17 It hardly needs to be added that “group action” may involve as few
as two employees, such as a speaker and a listener in conversation. Id.
For example, the Board has “held that a communication from one em-
ployee to another in an attempt to protect the latter’s employment con-
stitutes protected concerted activity.” Tracer Protection Services, 328
NLRB 734, 741 (1999), citing Jhirmack Enterprises, 283 NLRB 609
fn. 2 (1987).
18 Our colleague claims that the Epilepsy Foundation Board “applied
the Alleluia Cushion [221 NLRB 999 (1975)] definition of concerted
activity.” Alleluia Cushion involved an employee who made an indi-
vidual complaint to a state agency, without involving—or attempting to
involve—his coworkers. The doctrine involved there simply has no
bearing on the situation implicated in this case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1308
lumbia Circuit’s phrase.19 Indeed, it is not clear that our
colleague would protect an employee from discharge
merely for asking permission to have a coworker repre-
sentative.20
The “proper focus in evaluating the requirement of
concertedness in this context should be on the literal na-
ture of the activity that would take place if the em-
ployee’s request was granted.” E. I. du Pont & Co. v.
NLRB, 724 F.2d 1061, 1066 (3d Cir. 1983), vacated 733
F.2d 296 (3d Cir. 1984) (granting Board’s motion to re-
mand). There is an integral relationship between the
request and the assistance that may follow. Cf. City Dis-
posal Systems, supra, 465 U.S. at 831–833 and fn. 10
(discussing “integral relationship” between individual
activity of invoking right under collective-bargaining
agreement and process that gave rise to agreement). An
employer’s prohibition against coworker representation
stifles concerted activity just as surely as a rule prohibit-
ing employees from discussing working conditions,
which is clearly unlawful.21
It is the view taken by the concurrence, then—and not
Epilepsy Foundation—that is out of step with the deci-
sions of the Board and the courts and with the values of
the Act. The Act put an end to narrow notions of when
employees were free to act together.
III.
Chairman Battista and Member Meisburg acknowl-
edge that the Board’s decision in Epilepsy Foundation is
“a permissible interpretation of the Act,” but invoke
“policy considerations” for refusing to adhere to it, and
Member Schaumber endorses those considerations.22
The decision to overrule a recent precedent, carefully
reasoned and upheld in the courts, should be based on far
more compelling reasons than our colleagues have articu-
lated. Before examining the reasons actually offered, it
is worth emphasizing what (besides justifying a depar-
ture from the doctrine of stare decisis) those reasons
must accomplish. They must explain either why there is
no Section 7 right implicated here or why, on balance,

19 Epilepsy Foundation, supra, 268 F.3d at 1100.
20 Our colleague observes that it is “unnecessary to reach that issue
here.” But as we have pointed out (see fn. 13, supra), the Board has
consistently held that requesting a coworker representative is protected
concerted activity. We see no way to reconcile our colleague’s position
on what constitutes concerted activity with the Board law that the sim-
ple request for a representative cannot be punished. In this respect, as in
others, we believe that our colleague’s approach is inconsistent with
Board law, regardless of whether the Board continues to adhere to
Epilepsy Foundation.
21 Compare, Mediaone of Greater Florida, Inc., 340 NLRB No. 39,
slip op. p. 3 (2003).
22 We therefore refer to the “majority” in addressing these policy ar-
guments.
that right is outweighed—in every case, regardless of the
circumstances—by other considerations that the Board
legitimately can give weight. The majority appears to
make arguments of both kinds, none of them persuasive.
A.
Our colleagues argue that differences in the union and
nonunion settings justify denying nonunion workers the
right recognized in Weingarten. The real question, how-
ever, is whether these differences mean that the right to
representation can be grounded in Section 7 only where a
union represents workers. Clearly, they do not, for rea-
sons convincingly explained in Epilepsy Foundation.
From the perspective of Section 7, at least, it makes no
difference whether, like union representatives, coworker
representatives (1) represent the interests of the entire
workforce,23 (2) can redress the imbalance of power be-
tween employers and employees, or (3) have the skills
needed to be effective. The majority makes a powerful
case for unionization, but a weak one for refusing to rec-
ognize the rights of nonunion workers.24 As the Epilepsy
Foundation Board correctly observed, “Section 7 rights
do not turn on either the skills or the motives of the em-
ployee’s representative.” 331 NLRB at 679. The major-
ity here simply confuses the efficacy of a right with its
existence.
According to the majority, there is a “critical differ-
ence between a unionized work force and a nonunion
work force” that is relevant here: “the employer in the
latter situation can deal with employees on an individual
basis.” This contention was refuted by the Board in Epi-
lepsy Foundation, drawing on a decision of the Third
Circuit. 331 NLRB at 678, citing Slaughter v. NLRB,
794 F.2d 120, 127 (3d Cir. 1986). The District of Co-
lumbia Circuit, in turn, has rejected the majority’s point.
Epilepsy Foundation, 268 F.3d at 1101–1102. Simply
put, requiring a nonunion employer to permit coworker
representation (if it chooses to conduct an investigatory
interview) is not the equivalent of requiring the employer
to bargain with, or to deal with, the representative. De-
scribing the argument as based on the “historic distinc-
23 The District of Columbia Circuit has flatly rejected the notion that
“because a coworker owes no ‘duty’ to a requesting worker, there is no
foundation for ‘concerted’ activity.” Epilepsy Foundation, 268 F.3d at
1100.
24 In this regard, one critic of the Board’s earlier decisions in this
area found it “astonishing to hear from the very appointees who pro-
claim the importance of protecting employees’ free choice, that it is
only by voting for union representation that employees may gain their
full complement of statutory rights.” Levy, supra, 16 Rutgers L. J. at
292–293.

IBM CORP. 1309
tion between unionized and nonunion employers,” as
opposed to the Act itself, does not save it.25
B.
Aside from its attempt to distinguish union and nonun-
ion workplaces, the majority claims that employers have
an overriding need to prevent interference with work-
place investigations mandated by law. But there is no
basis to conclude that coworker representation has had,
or likely will have, any of the harmful consequences that
the majority conjures up. The solution here is to strike a
balance, not to pretend that nonunion employees have no
Section 7 interest that must be respected.26
Although the majority does not bother to detail the
sources of employers’ legal obligations to conduct effec-
tive workplace investigations, we will assume that em-
ployers do have such a legal obligation, in some circum-
stances. Further, we will assume that nonunion employ-
ees’ right to representation makes it harder, in some
measure, for employers to discharge that obligation—just
as observing other legal requirements or moral norms
does (Star Chamber proceedings, in contrast, were won-
derfully efficient). Even making these assumptions,
however, it is impossible fairly to reach the majority’s
conclusion: that nonunion workers are never entitled to a
coworker representative in investigatory interviews.
First, to the extent that employees’ rights under the Act
may be in tension with legitimate employer interests or
the goals of other federal statutes, the majority never
explains why it is that Section 7 must give way, always
and completely. Surely the process is one of balancing
and accommodation, conducted case-by-case, as federal

25 We understand the concurrence—which champions the common-
law right of nonunion employers to “deal with employees on an indi-
vidual basis”—to endorse the strong form of this unsuccessful argu-
ment. To the extent our colleagues use the phrase “dealing with,” they
seem to neglect its status as a term of art incorporated in the Act. See
Sec. 2(5) (defining “labor organization” as existing “for the purpose of
. . . dealing with employers”). The role of a coworker representative, as
elucidated in the Board’s decisions (see fn. 4, supra), is not that of a
labor organization. As we have explained, the Weingarten right to
representation is based on Sec. 7, not Sec. 9, and Weingarten itself
makes clear that even in a union setting, the employer has no duty to
bargain with the representative. 420 U.S. at 259–260.
26 Our concurring colleague invokes the “common-law prerogatives
of management in nonunion settings.” But the Act applies in nonunion
settings, as well as in union settings, e.g., NLRB v. Washington Alumi-
num, 370 U.S. 9 (1962), and the statutory “prohibitions against interfer-
ence by employers with self-organization of employees were not only
unknown, they were obnoxious to the common law.” Agwilines, Inc. v.
NLRB, 87 F.2d 146, 150 (5th Cir. 1936). See NLRB v. Colten, 105 F.2d
179, 182 (6th Cir. 1939) (Act is regulatory statute creating rights and
remedies “not only unknown to the common law but often in deroga-
tion of it”). Nearly 70 years after the National Labor Relations Act was
passed, it seems a little late to suggest that, as a statute in derogation of
the common law, it must be construed narrowly.
labor law has long recognized in other contexts.27 If, as
we believe, the right to representation is guaranteed by
Section 7, then any infringement of that right is presump-
tively a violation of Section 8(a)(1), but the presumption
may be overcome, in appropriate circumstances (a point
we will address).
Second, the majority has simply failed to make the
case that a nonunion employer cannot conduct an effec-
tive investigation if employees are entitled to coworker
representation during interviews that reasonably may
lead to discipline. Here, too, the majority contrasts union
representatives and coworker representatives, arguing
that union representatives may actually facilitate an ef-
fective investigation and that in any case, their special
legal status makes them less likely to violate confidenti-
ality.
The majority’s arguments against extending the Wein-
garten right to nonunion employees prove too much. If
employers’ obligation to conduct effective investigations
is an overriding concern, then even the right to a union
representative should be foreclosed (a radical step we
hope the majority forswears). Nothing in a union’s statu-
tory duty of fair representation, which runs to employees,
requires the union to serve the employer’s interests,
whether in imposing discipline or preserving confidenti-
ality.28 Indeed, given the skill of union representatives
and the power of union solidarity (factors noted by the
majority), permitting union representation is, if anything,
more likely to complicate an employer’s investigation
than permitting coworker representation in nonunion
workplaces.
In any case, there is no evidence before the Board ei-
ther that unions have interfered with employers’ investi-
gatory obligations since 1975, when Weingarten was
decided, or that coworker representatives have caused
harm since Epilepsy Foundation issued in 2000. Nothing
in the record shows that investigations have come to a
halt because of the presence of a coworker at an investi-
gatory interview, or that information obtained during
such an interview has been compromised. Rotely repeat-
ing the unsupported assertions of employer advocates in
their briefs to the Board, the majority shows a startling
lack of interest in what is actually happening in Ameri-
can workplaces.
27 See, e.g., Republic Aviation Corp. v. NLRB, 324 U.S. 793, 797–
798 (1945) (addressing Sec. 7 right to engage in union solicitation and
to wear union insignia, in context of employer’s property and manage-
ment rights). Insofar as the majority relies on state or local law, it
never explains why federal preemption does not come into play.
28 The majority asserts that “a union representative’s fiduciary duty
to all unit employees helps to assure confidentiality for the employer.”
We are aware of no Board or court decision that supports this proposi-
tion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1310
If and when the right to representation raises legitimate
concerns, they can and should be addressed by refining
the right, case-by-case. For example, our colleagues
have suggested that an investigation could be impeded if
the employer were compelled to permit representation by
a coworker involved in the same incident being investi-
gated (a so-called “coconspirator”). That concern could
be addressed specifically, by permitting an employer to
deny an employee’s request for representation by a pos-
sible coconspirator, under appropriate circumstances.
But instead of permitting the Board’s law to evolve in
response to actual situations confronting employers and
employees, the majority proceeds by fiat.
IV.
No one suggests that the National Labor Relations Act
gives employees the same protections that are available
to criminal suspects under the Constitution. The Wein-
garten right is not the equivalent of a right to counsel,
and employees have no privilege against self-
incrimination. Yet modest 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 at-will 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.
Needless to say, unjust discipline can provoke labor dis-
putes. Because a purpose of the Act is to provide a vehi-
cle for employee voice and a system for resolving work-
place disputes, this due process requirement furthers the
goals of the Act.
Far from being an anachronism, then, Epilepsy Foun-
dation is in perfect step with the times.29 In nonunion
workplaces, employer-imposed alternative dispute reso-
lution (ADR) mechanisms, from grievance procedures to
compulsory arbitration, are becoming increasingly com-
mon.30 These mechanisms, when adopted in good faith,

29 The evolution discussed here is not unique to the United States.
For example, the United Kingdom in 1999 granted employees a statu-
tory right to coworker representation in disciplinary or grievance hear-
ings. Employment Relations Act 1999, 1999 Chapter c. 26, Sec. 10(1)-
(4).
30 “A 1995 General Accounting Office (GAO) survey of 2,000 busi-
nesses with more than 100 employees found that more than 90 percent
had established ‘some sort of grievance procedure using one or more
ADR approaches.’ Roughly 10 percent used arbitration, although less
than half made it mandatory. Other popular forms of ADR included
fact-finding, negotiation, internal mediation and peer review.” Stuart
H. Bompey et al., The Attack on Arbitration and Mediation of Employ-
reflect an evolving norm of fairness and due process in
the workplace—a norm that should not be entirely de-
pendent on winning union representation. The arbitrary
exercise of power by employers, over their employees,
no longer strikes us as either natural or desirable.
Grounded in the Act’s notion of “mutual aid or protec-
tion,” the right to coworker representation for nonunion
workers also contributes to a workplace in which em-
ployers respect something like the rule of law.31
On this view, it is our colleagues who are taking a step
backwards. They have neither demonstrated that Epi-
lepsy Foundation is contrary to the Act, nor offered
compelling policy reasons for failing to follow precedent.
They have overruled a sound decision not because they
must, and not because they should, but because they can.
As a result, today’s decision itself is unlikely to have an
enduring place in American labor law. We dissent.

Rosetta B. Lane, Esq., for the General Counsel.
Gregory R. Meyer and John F. Ring, Esqs., for the Respondent.
Richard W. Rutherford, Esq., for the Charging Parties.
DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. This case
was tried in Winston-Salem, North Carolina, on August 9,
2002, pursuant to a complaint that issued on April 30, 2002.1
The complaint alleges that the Respondent violated Section
8(a)(1) of the National Labor Relations Act by denying the
requests of the Charging Parties to be represented during inter-
views that they had reasonable cause to believe would result in
disciplinary action.2 The Respondent’s answer denies any
violation of the Act. I find that the evidence does establish that
the Respondent violated the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by all parties, I make the following

ment Disputes, 13 The Labor Lawyer 21, 13 (Summer 1997) (footnotes
omitted).
31 At the same time, of course, the experience of employee and co-
worker, acting together in the context of an investigatory interview,
may lead to other concerted activity and, where a majority of employ-
ees desire it, ultimately to union representation. That process is exactly
what the Act is intended to foster. See, e.g., Finkin, supra, 71 Iowa L.
Rev. at 186–187 (“The formation of even so limited a solidarity has the
potential of ripening into broader collective efforts—which may ex-
plain why a nonunion employer would resist the extension of Weingar-
ten, wholly apart from considerations of administrative inconven-
ience”).
1 All dates are in 2001 unless otherwise indicated.
2 The charge in Case 11–CA–19324–1 was filed on January 4, 2002,
the charge in Case 11–CA–19329–1 was filed on January 10, 2002, and
the charge in Case 11–CA–19334–1 was filed on January 11, 2002.

IBM CORP. 1311
FINDINGS OF FACT
I. JURISDICTION
The Respondent, IBM Corporation, the Company, is a New
York corporation, with facilities located in Research Triangle
Park, North Carolina, where it is engaged in the manufacture
and distribution of computer products. During the past 12
months the Respondent, at its Research Triangle Park facilities,
purchased and received goods and materials valued in excess of
$50,000 directly from points outside the State of North Caro-
lina. The Respondent admits, and I find and conclude, that it is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
The Charging Parties were all discharged by the Company in
late November. The discharges are not at issue in this proceed-
ing. The only issue in this case is the alleged refusal of the
Company to permit the Charging Parties to have a witness at
investigatory interviews that were conducted on October 23.
All parties are aware of the Board’s decision in Epilepsy Foun-
dation of Northeast Ohio, 331 NLRB 676 (2000), that extended
Weingarten rights to unrepresented employees. Although the
Company contends that Epilepsy Foundation was wrongly
decided, its primary contention is that Epilepsy Foundation is
not applicable because the Charging Parties did not request a
witness. The Charging Parties each testified that they did, indi-
vidually, request a witness prior to one-on-one interviews con-
ducted on October 23. Thus, resolution of this case is totally
dependent on the credibility of the witnesses.
B. Facts
In early October, the Company received a letter dated Octo-
ber 1 from an attorney representing a former contract employee
who had worked for the Company from August 2000 until late
June or early July 2001. The letter set out allegations of alleged
harassment by IBM employees Kenneth Schult and Steven
Parsley. The letter was forwarded to Human Resources Partner
Julie Harrison, who is based in Atlanta, Georgia. Harrison
assigned the investigation to Manager of e-business Solutions
Nels Maine who is located in Raleigh, North Carolina. Al-
though the investigation was not a true “open door investiga-
tion,” presumably because the complaint came from a former
contract employee rather than a company employee, Harrison
sent Maine the guidelines for conducting an “open door inves-
tigation,” i.e., an investigation initiated through the Company’s
open door policy.
The guidelines sent by Harrison set out the procedures to be
followed by the investigator. Paragraph 3 of the section on
investigative fact finding in the guidelines includes the follow-
ing directives:

Individuals interviewed should be instructed . . . to keep any
information disclosed to them by the investigator confidential.
It is inappropriate, however, to order an employee who is sus-
pected of wrongdoing not to discuss the matter with others.
[Emphasis added.]

Paragraph 4 notes that recording devices should not be used
and that the investigator should “terminate the interview” if
there is “cause to believe” the interview is being recorded.
The guidelines, published in 1998, contain no revision noting
the Board’s decision in Epilepsy Foundation. Although Harri-
son and other human resources professionals in the Company
had been briefed regarding Epilepsy Foundation in a confer-
ence call held in August 2000, Maine was unaware of the deci-
sion at the time he conducted the investigation. Harrison and
Cynthia Hopson, program manager for corporate internal ap-
peals, testified that, if an employee invoked the right to a wit-
ness, the Company’s policy was to advise the employee that, if
the employee continued to assert that right, the investigation
would proceed without that employee’s input. This is consis-
tent with the provision in the guidelines providing that, if an
employee insisted on recording the interview, the interview
should be terminated.
During the week preceding October 14, Maine interviewed
various supervisors of the employees who were the subjects of
the investigation. He began interviewing employees during the
week of October 14. Notwithstanding their technical expertise
and various designations, all parties stipulated that, for pur-
poses of this proceeding, the Charging Parties and Senior Pro-
ject Manager Kenneth Jones are statutory employees, not su-
pervisors, under the Act. The interviews were conducted in a
conference room in the building in which the employees
worked at the Research Triangle Park near Raleigh, North
Carolina. None of the Charging Parties were advised that they
had been accused of any misconduct. Maine testified that, at
the outset of each interview, he introduced himself and in-
formed the employees that he was investigating concerns
“stated in a letter that was sent to IBM.” He then instructed
each employee as follows:

I expect your honesty, please do not disclose the fact that an
investigation is in progress. Keep any information I disclose
to you confidential. I ask you to be discreet about the matter
so the process can be given a chance to work. I am simply
doing an investigation, please do not make any inferences
from the questions I will be asking you.

At the second interview he held with each employee on Oc-
tober 23, Maine admitted that he advised each employee that
“failing to cooperate in an investigation is a business conduct
issue that translated into disciplinary action up to and including
firing.” Each of the Charging Parties testified that the state-
ment regarding the consequences of failing to cooperate was
made at both interviews. Whether it was is immaterial to the
issues before me.
On October 15 Maine interviewed employee Kenneth Schult
at 11 a.m. After Maine had finished questioning him, Schult
asked what his rights were. Maine replied that he was not ac-
cused of anything, that he was just being asked to answer the
questions. Schult responded that it was obvious from the ques-
tions that he was being accused and wanted to know what
would be the next step. Maine responded that this was the first
time that he had conducted an investigation of this nature and
that “someone would get back” to Schult. As Schult left,
Maine told him that he was “prohibited from speaking with
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1312
anyone other than himself [Maine] or a manager.” Maine did
not specifically deny the foregoing conversation and admitted
that he told all employees not to make any inference from his
questions and “to keep things confidential.”
On October 15 Steve Parsley was informed by one of his su-
pervisors, personal development manager (PDM), Mary
Geerdes, that he needed to attend an interview at 12:15 p.m.
Parsley said that he had a luncheon appointment, and Geerdes
told him to cancel it. She escorted him to a conference room
where he met with Maine. Maine asked him a list of questions.
Like Schult, Parsley asked Maine what he was being accused
of, and Maine replied that he was not being accused of any-
thing, that he simply needed to cooperate and answer the ques-
tions. As Parsley was leaving, Maine informed him that their
conversation was “IBM confidential” and that he was not al-
lowed to talk about it with any coworkers, that if he did so he
could be disciplined. Maine did not deny stating to Parsley that
he was not being accused of anything or giving the foregoing
directive not to talk to any coworkers.
Employee Robert Bannon, although not specifically accused
in the letter of October 1, was mentioned in the letter. Maine
interviewed Bannon at 1 p.m. After Maine had questioned him,
Bannon asked if he was accused, and Maine responded “you
were on the outside,” and that he “probably would not hear
from him [Maine] again.”
None of the Charging Parties requested the presence of a
witness at the interviews conducted on October 15.
Despite Maine’s admonition not to discuss the interview,
Parsley went to the office of Schult, who had formerly been his
project manager. There he spoke about the interview with
Schult, Bannon, who shares Schult’s office, and Supervisor
Geerdes.
All three of the Charging Parties were suspended on Friday,
October 19. Supervisor Judy Stackhouse called Schult on his
cellular telephone and reached him as he was driving his chil-
dren to the North Carolina State Fair. Stackhouse informed
Schult that he was being sent home for the duration of the inves-
tigation, that he was to turn in his equipment and be available.
Supervisor Geerdes called Bannon and informed him that he had
been placed on “management directed time off.” He asked if
anyone else had been affected, and Geerdes identified Schult
and Parsley. Parsley was in Charleston, West Virginia, to attend
the wedding of a coworker. He received a telephone call from
Supervisor Geerdes who told him that he was being placed on
“management time off,” that he was not to talk to any coworkers
except for management, that he was not allowed on IBM prem-
ises, and that he was to return his company equipment on Mon-
day. Parsley was directed to be available “if they needed to ask
me any more questions.” He asked what was going on and what
his rights were. Geerdes replied that the investigation was con-
tinuing regarding “inappropriate conduct in the workplace” and
that she did not know what his rights were. Geerdes noted that
Schult and Bannon had also been sent home.
On Sunday, October 21, Parsley received a telephone call
from his current project manager, Senior Project Manager Ken-
neth Jones, regarding final actions that needed to be completed
before the project on which Parsley had been working could be
deployed. Jones had been advised that Parsley had been placed
on “management time off” and would not be present at work.
Parsley informed Jones that he did not know when he would be
returning, that he felt like he had been pushed out of the Com-
pany and that he was concerned that he was going to be termi-
nated since “they sent me home.” Jones is a former lieutenant
colonel in the United States Army. Parsley recalls that Jones,
speaking from his military experience, told him that, “if some-
one believed [there] was going to be punitive charges against
them, that they should ask for a coworker to be present in in-
vestigations or be able to tape the conversations.”
Jones confirmed that when he spoke with Parsley he noted
that he was a “manager in the Army for 22 years. And if some-
thing is adverse, be sure that you either record the conversation
or have a witness.” On cross-examination Jones was asked
whether he had used the word “[w]itness, third party, some-
thing else.” Jones responded, “I don’t recall. I just said be sure
that if you’re in an adversarial situation . . . that you’re not
alone, if you will. I don’t recall my exact words. I just told
him, record it or have a witness.”
Shortly after this conversation, Parsley called Schult and in-
formed him that Jones had told him that “if there was to be
some more interviews that we should insist on having a co-
worker present during those interviews.” Schult recalled that
Parsley called him and informed him that Jones had said that
we “need to ask for a coworker.” Schult called Bannon and
informed him of what Parsley had told him.
Between October 15 and 19, Schult sent Maine e-mail mes-
sages to which he attached copies of prior e-mails relating to an
invoicing problem with the contractor that had supplied the
contract employee on whose behalf the letter of October 1 had
been written and copies of prior e-mails relating to the contract
employee. Schult’s communications with Maine ceased after
October 19. On October 20, Schult sent an e-mail to his direc-
tor noting that his manager had stated that no accusations had
been made against him but that he had been placed on leave by
his manager. He questioned why he had been placed on leave
and what his rights were. He noted that he was concerned that
next thing he was going to receive was “a letter of termina-
tion.”3 The record contains no response to this inquiry. Schult
testified that he searched the “web” and confirmed that em-
ployees were entitled to have a witness at interviews that could
result in discipline. He was not certain when he printed out that
information.
On October 22 Bannon called Maine who, on answering the
telephone, stated that he was glad Bannon had called, that he
needed to interview him the next day. Bannon testified that he
asked if he could have a coworker or an attorney present. Maine
replied, “[N]o. You just need to come in and answer the ques-
tions.” Maine continued, stating that Bannon needed to take this
“very, very seriously.” Bannon noted that Maine was contra-
dicting himself since he had told him that he was not accused of
anything and had been “sitting there laughing when he asked
him the first set of questions.” Maine responded that he had
“just laughed at one question.” Maine did not deny the laughing
reference, but did deny that Bannon requested a coworker or

3 The Respondent’s brief, at p. 6, incorrectly states the date of this e-
mail as October 23.

IBM CORP. 1313
attorney. A memo that Maine made regarding this call does not
reflect a request for a coworker or attorney or the reference to
laughing. It reports that Bannon asked whether any allegations
had been made against him and that Maine responded that he
“could not answer that question.” Bannon testified that his re-
quest to have an attorney present resulted from conversations
with another coworker, not Schult or Parsley.
Following Bannon’s call, Schult, Bannon, and Parsley met at
a Barnes and Noble bookstore in Cary, North Carolina. Ban-
non informed Parsley and Schult that he had called Maine and
that Maine had told him that he would have another interview.
Bannon noted that he had requested to have a coworker present
and Maine had denied the request. Schult recalled reporting
that he had searched the “web” and that he stated, “Ken’s
right,” referring to the advice Ken Jones had given Parsley.
The three employees agreed that each would ask to have one of
the others of them present at any interview if Maine would
permit them to do so.
Later that day, Schult received a call from Maine’s assistant
who scheduled an interview on the following day. Schult testi-
fied that he then called Maine, stating that he had made the
appointment “with Wendy.” Maine replied that he knew, “I
asked her to call you.” Schult testified that he told Maine that
he would “like to have a coworker present tomorrow for this
interview,” and that Maine replied that he could not and noted
that he was “not supposed to be talking . . . with anyone either.”
Maine only acknowledged receiving communications from
Schult from October 15 through the 19, implicitly denying the
telephone call on October 22.
On October 23 Bannon met with Maine at 10:15 a.m.
Maine’s assistant escorted him to the interview room, a confer-
ence room in a building in which the company’s executive
offices are located. When Maine arrived, Bannon asked what
his rights were and “whether I could have an attorney or co-
worker present.” Maine replied no, advised Bannon that he
needed to answer his questions, and read a statement advising
that failure to cooperate could result in disciplinary action up to
and including termination. Maine admitted that he did not “re-
member exactly” what Bannon said, but it was “something
like” why he was there and how he was supposed to act.
Maine’s testimony that he responded to Bannon by telling him
that he expected him to be open and honest and then reading
the statement that set out the consequences for failure to coop-
erate establishes that he did not directly respond to Bannon’s
questions. I credit Bannon.
Following the interview, Bannon went to the parking lot of a
local restaurant where he met with Parsley and Schult. He
informed them of what had occurred and that “we weren’t go-
ing to be allowed to bring anyone with us.”
Schult’s interview was at noon. After greeting Maine, Schult
testified that he told Maine that he knew he had “said ‘no’ yes-
terday, but I really would like to have a coworker present.”
Maine replied, no, that Schult just needed to answer the ques-
tions. Schult asked what his rights were, and Maine again re-
plied that he just needed to answer his questions. Maine admit-
ted that Schult “may” have asked why he was there. Although
Schult had written his director asking what his rights were,
Maine denied that Schult asked him that question. I credit
Schult.
Parsley’s interview was scheduled for 1 p.m. Maine was late.
When he returned from lunch, they greeted each other. Parsley
asked if he could have a coworker present. Maine replied, “No,”
that all he needed to do was answer the questions. Maine told
Parsley that he was “not being accused of anything.” Parsley
noted that “the questions being asked indicated that I was being
accused of something.” Maine responded by informing Parsley
that he needed to cooperate and that failure to do so could result
in disciplinary action including termination.
On November 26, Geerdes informed Parsley that he was be-
ing terminated and that he could file an internal appeal. He did
so. Among other matters, Parsley asserted that he had asked for
a coworker on October 23. His appeal was handled by Program
Manager for Corporate Internal Appeals Cynthia Hopson. It
was denied. When informing him of the denial, Parsley testi-
fied that Hopson stated that Maine “didn’t remember me ask-
ing” for a coworker and there was no “concrete evidence to
prove otherwise.” Hopson testified that Maine specifically
denied that Parsley requested a witness and that she so in-
formed Parsley.
Schult and Bannon also filed internal appeals. The report of
Schult’s appeal is not in the record. Hopson’s report regarding
Bannon’s appeal reflects that Maine denied that Bannon re-
quested that a coworker or attorney be permitted to attend his
interview on October 23.
Maine denied that any of the Charging Parties requested a
coworker as a witness at any time. He testified that, if they had
done so, he would have called Julie Harrison to “get a ruling on
how I should handle the situation.”
C. Contentions of the Parties, Analysis,
and Concluding Findings
Counsel for the General Counsel and counsel for the Charg-
ing Parties argue that these three employees, each of whom had
been placed on “management time off,” consulted with each
other regarding their rights. Regarding those rights, “[o]ne
piece of concrete advice” was that of Senior Project Manager
Jones, and the employees acted on it.
The Respondent argues that I should credit Maine’s denials
and find that, if any of the employees had requested a witness,
he would have called Harrison for instructions. The Respondent
further argues that the failure of any of the Charging Parties to
protest the purported denial of their rights until after their termi-
nations confirms that no request was made. In arguing that the
Charging Parties were not credible, the Respondent notes that
Bannon did not report to Parsley and Schult that an employee
had advised him to request an attorney and that Schult did not
take a printout of the information he found on the “web” to the
meeting at Barnes and Noble. The fact that Bannon did not
share the advice that he had received regarding an attorney does
not contradict his testimony that he, Schult, and Parsley agreed
that each would request a witness. Schult testified that he was
uncertain as to when he first printed out the information from
the “web.” Regardless of when he did so, the absence of a
document at Barnes and Noble confirming his statement that
“Ken’s right” is of no import. The Respondent points out that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1314
Parsley never mentioned to Schult and Bannon that Jones had
also suggested taping the conversation and that, when asked
why he did not request to tape the conservation, Parsley an-
swered that “they said you had to be alone” and that he “figured
they wouldn’t let me do it anyway.” The Respondent argues
that this same rationale would apply to having a coworker pre-
sent. Although the Respondent would apply the same rationale
to either request, it should be noted that a request to tape the
interview rather than for a coworker to be present would not
have invoked a Section 7 right. Jones told Parsley that he
should “be sure that if you’re in an adversarial situation . . . that
you’re not alone, if you will. . . . [R]ecord it or have a witness.”
Although Parsley’s logic may not have been consistent when he
concluded that seeking to tape any interview would not be al-
lowed but that he should insist on having a coworker present, the
Respondent’s guidelines confirm that taping would not have
been allowed. Having discounted the suggestion that he attempt
to tape any interview, Parsley focused upon the advice that he
should have a witness, and that is what he reported to Schult.
The Respondent argues that the testimony of the Charging
Parties is suspect because none protested the denial of a witness
until they filed appeals regarding their terminations. Parsley
had asked Geerdes what his rights were, and she said she did
not know. Schult sent an e-mail to his director asking what his
rights were, and there is no evidence that he received a reply.
Schult and Bannon asked Maine what their rights were and he
replied that they just needed to answer his questions. The em-
ployees had been placed on management time off on October
19. No further adverse action was taken against them until they
were terminated. There is no evidence in this record that there
was any procedure for the employees to follow prior to their
terminations. The compelling evidence on this record is that,
immediately upon being terminated, Parsley, Schult, and Ban-
non appealed their terminations and each separately protested
the denial of a witness on October 23.
The Respondent’s argument regarding Maine calling Harri-
son if any of the Charging Parties had requested a witness
would be more persuasive if the record confirmed that Maine
followed the guidelines. The record establishes that he did not.
Maine admitted composing his own statement that he read at
the first interviews. That statement instructs the employees not
to “disclose the fact that an investigation is in progress” and he
did not deny ordering Schult and Parsley to “keep it confiden-
tial.” Paragraph 3 of the guidelines includes the statement that
“[i]t is inappropriate . . . to order an employee who is suspected
of wrongdoing not to discuss the matter with others.” The let-
ter of October 1 specifically accused Schult and Parsley.
Jones advised Parsley “to be sure that if you’re in an adver-
sarial situation . . . that you’re not alone, . . . record it or have a
witness.” I fully credit Jones. His testimony was straightfor-
ward and his demeanor was impressive. Parsley credibly testi-
fied that he advised Schult that Jones had told him that he
should “insist on having a coworker.”
All three employees had reasonable cause to believe that the
interviews being conducted on October 23 would result in dis-
ciplinary action. Each had been suspended on October 19.
Schult wrote his director on October 20 stating that he was
concerned that the next thing he was going to receive was a
letter of termination, Parsley expressed to Jones on October 21
that he was concerned that he was going to be terminated since
“they sent me home,” and Bannon called Maine on October 22
asking if he was accused of anything.
I do not credit Maine’s denial that none of the Charging Par-
ties requested the presence of a coworker. His demeanor was
not impressive. When questioned regarding his meetings with
employees, Maine became defensive, as reflected by the fol-
lowing exchange on cross-examination:

MS. LANE: And you always met with employees in a one on
one setting. Is that correct?
MR. MAINE: Yes.
MS. LANE: No other employees present. Is that correct?
MR. MAINE: Or requested to be present.

The letter of October 1 specifically accused Schult and Pars-
ley. Maine denied to them that they had been accused. After
he was suspended, Bannon called Maine. Maine’s own memo-
randum reports that, when Bannon asked whether there were
any allegations against him, he replied that he “could not an-
swer that question.” He was no more forthcoming when he met
with Bannon on October 23. When Bannon and Schult asked
what their rights were on October 23, Maine responded that
they needed to answer his questions. It is clear that Maine was
focused on the questions that he was asking and the answers
that he was receiving, not the requests of the employees that
were the subjects of the investigation.
I credit Parsley, Schult, and Bannon. Each of these employ-
ees realized on October 19 that unusual actions were occurring
and each was justifiably concerned about possible discipline.
Parsley spoke directly with Jones on October 21. As of October
23, the only advice that Parsley had received was the advice of
Jones who confirmed that he told Parsley “to be sure . . . that
you’re not alone . . . record it or have a witness.” No manage-
ment official responded to Parsley’s request of Geerdes regard-
ing what his rights were. Parsley concluded, correctly, that he
would not be permitted to tape any interview. Parsley called
Schult, stating that Jones had advised him to “insist on having a
coworker present.” Schult confirmed on the “web” that it was
good advice. The three employees met together and discussed
the advice of Senior Project Manager Jones, a retired military
officer, and agreed that each would request the presence of a
coworker. This was the only definitive advice that they dis-
cussed since Bannon did not volunteer his conversations relating
to an attorney. It defies logic to believe that these employees
would not thereafter carry out their mutual agreement to seek to
have a witness when being interviewed by Maine. I find that
they did so and that Maine denied the requests and continued the
interviews. On being notified of their terminations, each em-
ployee separately protested the denial of a coworker as a witness
at the interviews held on October 23. By denying the requests
of these employees to have a coworker present during interviews
that they had reasonable cause to believe would result in disci-
plinary action, the Respondent violated Section 8(a)(1) of the
Act.

IBM CORP. 1315
CONCLUSION OF LAW
The Respondent, by denying the requests of the Charging
Parties to be represented during interviews that they had rea-
sonable cause to believe would result in disciplinary action and
then conducting those interviews following the denials of those
requests has engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) and Section 2(6)
and (7) of the Act.

[Recommended Order omitted from publication.]