Section 7 of the National Labor Relations Act (NLRA) provides in part that employees shall have the right “to engage in … concerted activities for the purpose of … mutual aid or protection.” In 1973, the Labor Board issued its Weingarten decision, which held that an employer violates Section 8(a)(1) of the NLRA when it denies a employee’s request, based on Section 7 of the Act, for the presence of a union representative at an investigatory interview that the employee reasonably believes might result in disciplinary action. The Board’s decision was upheld by the Supreme Court, and the right of an employee to request and obtain the presence of a coworker at an investigatory interview was extended to nonunion workplaces by the Board’s 1982 Material Research Corp. decision. Three years later, in 1985, the Reagan Board reversed this decision in the Sears, Roebuck Co. case, holding that Weingarten principles do not apply in nonunion settings. In the Clinton Board’s year 2000 Epilepsy Foundation of Northeast Ohio decision, it reimposed the Materials Research holding, concluding that unrepresented employees have a right to have a coworker present during investigatory interviews. And three years later, with the changing composition of the Board, on June 9, 2004, in a 3–2 decision, the Bush II Board reversed the year 2000 decision in its IBM Corp. decision and ruled that nonunion employees do not have the right to have a coworker present during an investigatory interview. Read the edited version of the IBM Corp. case in Section 5.2.
Consider the merits of the policy considerations relied on by the majority. Remember that the Labor Board’s custom is to follow an “adjudication” method of establishing policy precedents. Was the Board majority within the Chevron principles when it made the policy decision to divest more than 90 percent of all nonmanagement workers employed in the U.S. private sector subject to the NLRA the right to have a coworker present at an investigatory interview that could lead to discipline or discharge? Decide. [IBM Corp., 174 LRRM 1537 (2004)]