NLRB - Epilepsy Foundation of Northeast Ohio

Epilepsy Foundation of Northeast Ohio and Arnis Borgs and Ashraful Hasan. Cases 8–CA–28169 and 8–CA–28264

July 10, 2000

DECISION AND ORDER

By Chairman Truesdale and Members Fox, Liebman, Hurtgen, and Brame

On January 2, 1998, Administrative Law Judge Richard A. Scully issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed an answering brief.

The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,[1] and conclusions only to the extent consistent with this Decision and Order.

Introduction

The General Counsel excepts to the judge’s finding that the Respondent did not violate Section 8(a)(1) of the Act by discharging employees Arnis Borgs and Ashraful Hasan. The General Counsel contends that both Borgs and Hasan were discharged for engaging in protected concerted activity. In arguing that the discharge of Borgs is unlawful, the General Counsel requests the Board to once again consider the question of whether the principles set forth by the Supreme Court in NLRB v. J. Weingarten[2] should be extended to employees in nonunionized workplaces, to afford them the right to have a coworker present at an investigatory interview which the employee reasonably believes might result in disciplinary action. The General Counsel contends that affording nonunionized employees this right is consistent with the Court’s decision. We agree with the General Counsel’s contentions, including those concerning Weingarten, and for the reasons set forth below, find that the discharges of both Borgs and Hasan are unlawful.

The Discharge of Arnis Borgs

The essential facts pertaining to Borgs’ discharge are not in dispute. The Respondent provides services to persons affected by epilepsy. One of its programs involves a research project concerning school-to-work transition for teenagers with epilepsy. Borgs worked on this project as an employment specialist, and Ashraful Hasan was the Respondent’s transition specialist on this project.

On January 17, 1996,[3] Borgs and Hasan prepared a memo to the Respondent’s director of vocational services, Rick Berger, who was their supervisor on the project. The memo stated that Berger’s supervision of Borgs and Hasan was no longer required.[4] A copy of this memo was also sent to the Respondent’s Executive Director, Christine Loehrke. Thereafter, Borgs and Hasan learned that Loehrke and Berger were very unhappy about the memo. In view of this reaction, on January 29, Hasan and Borgs prepared another memo, this time addressed to Loehrke, which elaborated on the reasons for their prior assertion that Berger’s supervision was no longer required. Specifically, the memo was critical of Berger’s involvement in the program, and cited several examples of incidents where, in their view, Berger acted inappropriately.

On February 1, Loehrke approached Borgs and directed him to meet with her and Berger. Borgs felt intimidated by the prospect of meeting with both Loehrke and Berger together because of a reprimand he received at a prior meeting with them,[5] and expressed these reservations to Loehrke. Borgs asked if he could instead meet with Loehrke alone. Loehrke refused Borgs’ request. Borgs then asked if Hasan could be present with him at this meeting, but Loehrke refused this request as well. Borgs continued to express his opposition to meeting alone with Loehrke and Berger, and in response to this opposition, Loehrke told Borgs to go home for the day and report back at 9 a.m. the next morning.

The following day, Borgs met with Loehrke and Jim Wilson, the Respondent’s Director of Administration. Loehrke told Borgs that his refusal to meet the previous day constituted gross insubordination and that he was terminated. Loehrke then gave Borgs a letter of termination.[6]

The judge found that the Respondent discharged Borgs for his persistent refusal to comply with Loehrke’s directive to meet alone with her and Berger. The judge noted that, under Weingarten, employees in unionized work forces are entitled to representation in investigatory interviews which the employee reasonably believes could result in disciplinary action, but under current Board precedent, employees in nonunionized workplaces do not have the right to have a coworker present in similar circumstances. E. I. DuPont & Co., 289 NLRB 627 (1988). Accordingly, the judge found that Borgs had no statutory right to condition his attendance at the meeting on the presence of Hasan, and thus the Respondent’s discharge of Borgs for refusing to attend the meeting did not violate Section 8(a)(1) of the Act.

We agree with the judge’s finding that Borgs was discharged for refusing to attend the meeting with Loehrke and Berger.[7] We also agree that the judge accurately applied the relevant Board precedent. After careful consideration, however, we find that precedent to be inconsistent with the rationale articulated in the Supreme Court’s Weingarten decision, and with the purposes of the Act. Consequently, we shall overrule that precedent today and find that that the Respondent’s termination of Borgs for his attempt to have a coworker present at the meeting was unlawful.

Our examination of this issue begins with the Supreme Court’s seminal Weingarten decision. There, as noted above, the Court held that an employer violated Section 8(a)(1) by denying an employee’s request that a union representative be present at an investigatory interview which the employee reasonably believed might result in disciplinary action. The Court, in upholding the Board’s finding of a violation, found that the employee’s action in seeking representation in such circumstances “falls within the literal wording of Section 7 of the Act that “[e]mployees shall have the right . . . to engage in . . . concerted activities for the purpose of mutual aid or protection.” Id. at 260. The Court explained further as follows:

The union representative whose participation he seeks is however safeguarding not only the particular employee’s interest, but also the interests of the entire bargaining unit by exercising vigilance to make certain that the employer does not initiate or continue a practice of imposing punishment unjustly. Id.

Read together, these statements explain that the right to the presence of a representative is grounded in the rationale that the Act generally affords employees the opportunity to act together to address the issue of an employer’s practice of imposing unjust punishment on employees.

Because the facts at issue in Weingarten involved a request for the presence of a union representative, the Court’s decision did not specifically refer to circumstances involving the request for a coworker representative in nonunion settings. The Board, however, has addressed this precise issue on several occasions. In Materials Research Corp., 262 NLRB 1010 (1982), the Board found that the Weingarten right includes the right to request the presence of a coworker at an investigatory interview in a nonunion setting. In that case, the Board relied on the fact that Weingarten emphasized that the right to the assistance of a representative is derived from the Section 7 protection afforded to concerted activity, rather than from a union’s right pursuant to Section 9 to act as the employee’s representative for the purpose of collective bargaining. Consequently, the Board found that the ability to avail oneself of this protection does not depend on whether the employees are represented by a union.

The Board overruled Materials Research Corp., however, in Sears, Roebuck & Co., 274 NLRB 230 (1985), and held there that Weingarten principles do not apply in circumstances where there is no certified or recognized union. In that case, the Board specifically rejected the prior decision’s reliance on the fact that the Weingarten rights are based on Section 7, stating that “[t]he scope of Section 7’s protections may vary depending on whether employees are represented or unrepresented. . . .” The Board also expressed the view that extending Weingarten rights to employees not represented by a union is inconsistent with the Act because it infringes upon an employer’s right to deal with employees on an individual basis when no union is present. Id. at 231.

The Board modified the Sears rationale in E. I. DuPont & Co., 289 NLRB 627 (1988). In that case, the Board adhered to its position that Weingarten rights are not applicable in nonunion settings, but acknowledged that “the statute might be amenable to other interpretations.” Id. at 628. Thus, the Board specifically disavowed Sears insofar as it held that the Act compels a finding that Weingarten rights are applicable only in unionized workplaces. Id. at fn. 8. The Board, however, declined to return to the rule of Materials Research for several reasons. First, the Board stated that the Court in Weingarten placed the issue in the context of the Act’s purpose of redressing the perceived balance of economic power between labor and management, and that this consideration is of lesser significance if the employees are not represented by a union. Second, the Board stated that in a nonunion setting, the employee representative has no obligation to represent the interests of the entire unit, and thus it is less likely that the representative’s presence will safeguard the interests of employees as a group. Id. at 629. Third, the Board stated that it is less likely that the employee representative would have the skills equivalent to those that a union representative would have to provide effective representation to the employee. Id. Finally, the Board stated that the assertion of a Weingarten right might be more detrimental to the employee in a nonunion setting if the employer then decides to forego the interview rather than conduct it with an employee representative. The Board explained that, unlike the union-represented employee who had a framework for resolving grievances, the unrepresented employee could lose his only opportunity to present his side of the issue. Id. at 630. Accordingly, while recognizing that the Board’s holding in Materials Research was not necessarily inconsistent with the purposes of the Act, the Board in Dupont declined to return to the holding of that case.

We disagree with the Board’s holdings in Sears and Dupont, and find that a return to the rule set forth in Materials Research, i.e., that Weingarten rights are applicable in the nonunionized workplace as well as the unionized workplace, is warranted .[8] Sears and Dupont misconstrue the language of Weingarten and erroneously limit its applicability to the unionized workplace. In our view, the Board was correct in Materials Research to attach much significance to the fact that the Court’s Weingarten decision found that the right was grounded in the language of Section 7 of the Act, specifically the right to engage in “concerted activities for the purpose of mutual aid or protection.” This rationale is equally applicable in circumstances where employees are not represented by a union, for in these circumstances the right to have a coworker present at an investigatory interview also greatly enhances the employees’ opportunities to act in concert to address their concern “that the employer does not initiate or continue a practice of imposing punishment unjustly.”[9] Thus, affording Weingarten rights to employees in these circumstances effectuates the policy that “Section 7 rights are enjoyed by all employees and are in no wise dependent on union representation for their implementation.” Glomac Plastics, Inc., 234 NLRB 1309, 1311 (1978).[10]

We find no merit to the contention raised in Sears, and subsequently disavowed in Dupont, that the imposition of Weingarten rights in these circumstances “wreaks havoc” with the provisions of the Act that enable an employer to deal with employees on an individual basis when no union is present. The Act clearly protects the right of employees—whether unionized or not—to act in concert for mutual aid or protection. Further, as noted above, the right to have a coworker present at the investigatory interview affords unrepresented employees the opportunity to act in concert to prevent a practice of unjust punishment.[11] While an employer is generally free to deal with employees individually in the absence of union representation, an employer may not mask the obstruction of employee efforts to exercise Section 7 rights by asserting a right to deal on an individual basis. See generally, Ontario Knife Co. v. NLRB, 637 F.2d 840, 844-850 (2d Cir. 1980).

Member Brame contends that, by granting a nonunionized employee the right to have a coworker present in an investigatory interview, we are forcing the employer to “deal with” the equivalent of a labor organization, and that this conflicts with the exclusivity principle embodied in Section 9(a) of the Act. This contention was squarely addressed and soundly rejected by the Third Circuit Court of Appeals in Slaughter v. NLRB, 794 F.2d 120 (1986). “The entire argument,” the court said, “rests upon a non sequitur.” Id. at 127.

[T]he system of exclusive representation . . . which [it is claimed] . . . would be derogated from by the extension of Weinarten to the unorganized, is expressly one of collective bargaining, not of dealing. Accordingly, if, as the Supreme Court held, the employer has no statutory duty to bargain with the Weingarten representative, the function of that representative in the unorganized setting cannot be in derogation of the exclusivity principle or any other important statutory policy. Id. at 128.

In other words, even assuming that the role of an employee representative in an investigatory interview is equivalent to “dealing with” the employer, the argument advanced by Member Brame is irrelevant. “Dealing” is not equivalent to “collective bargaining,” and the employer is not required to “bargain collectively” with the Weingarten representative. As the Third Circuit held, the Section 9(a) exclusivity principle does not limit the Section 7 rights of nonunionized employees. In any event, if Member Brame insists that we are forcing a nonunionized employer to deal with the equivalent of a labor organization, he must also believe that an employer would violate Section 8(a)(2) of the Act by voluntarily allowing an employee to have a coworker present during the investigatory interview. We find this logic to be strained. More important, it misses the point, discussed above, that an employer is completely free to forego the investigatory interview and pursue other means of resolving the matter. Thus, contrary to Member Brame’s assertion, there is no obligation to deal with an employee representative of nonunionized employees.

We also find that the concerns raised by the Board in Dupont do not warrant allowing an employer to prohibit the exercise of Weingarten rights in nonunionized workplaces. Specifically, we take issue with Dupont’s reliance on the notions that the coworker has “no obligation” to represent the interests of fellow employees, and that the nonunionized coworker is less likely to have the skills necessary to provide representation comparable to that provided by a shop steward or some other union representative. The notion that employees in such circumstances would not be motivated to act in the interests of their fellow workers, or that employees might lack the abilities to offer constructive assistance to the interviewed employee, is wholly speculative.[12] It also misses the point that the employee is free to choose whether to request or forego representation. What is important is the availability of the option. Moreover, Section 7 rights do not turn on either the skills or the motives of the employee’s representative. Thus, these supposed concerns do not legitimately warrant foreclosing employees from the opportunity to avail themselves of the protections of the Act.

We also cannot agree with the statement in Dupont that extending Weingarten rights to the nonunion workplace will actually work to the detriment of employees by encouraging employers to forego the investigatory interview and thus leave the aggrieved employee without an opportunity to tell his or her side of the story. 289 NLRB at 630. This too is based wholly on speculation, and assumes the worst in employer motives. In addition, such rationale ignores the fact that employees are not obligated to request the presence of a Weingarten representative, and—as in the unionized workplace—can freely evaluate the strategic merits of any particular course of action in this regard.

Finally, we find no force in Member Hurtgen’s contention that affording Weingarten rights to nonunionized employees places an “unknown trip wire” on employers who are legitimately pursuing investigations of employee conduct. Our colleague speculates that employers in nonunionized settings will be completely unaware of an employee’s right to a Weingarten representative. We do not agree with his speculation. In any event, we fail to understand how an employer’s ignorance of employee rights provides a justification for denying those rights to employees.

In sum, we hold today that the rule enunciated in Weingarten applies to employees not represented by a union as well as to those that are. We overrule the Board’s decision in Dupont and return to the standard set forth in Materials Research Corp. In addition, we also shall apply the rule enunciated today to the facts of this case and find that the Respondent violated Section 8(a)(1) of the Act by terminating Borgs for insisting on having his coworker, Hasan, present at an investigatory interview. Such application is warranted in view of the well-settled retroactivity doctrine. As the court stated in NLRB v. Bufco Corp., 899 F.2d 608 (7th Cir. 1990):

Generally, a decision which changes existing law or policy is given retroactive effect unless retroactive application would cause “manifest injustice.” NLRB v. Affiliated Midwest Hosp., Inc., 789 F.2d 524 (7th Cir. 1986) (quoting NLRB v. Lyon & Ryan Ford, Inc., 647 F.2d 745, 757 (7th Cir. 1981) [*612] (citing Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S. Ct. 349, 30 L. Ed. 2d 296 (1971)). In determining whether manifest injustice is caused by the retroactive application of a Board rule we consider the following: “the reliance of the parties on pre-existing law, the effect of retroactivity on accomplishing the purpose of the law; and any injustice arising from retroactive application.” NLRB v. Chicago Marine Containers, Inc., 745 F.2d 493, 499 (7th Cir. 1984). Id. at 611–612.

We find that the application of the Weingarten rule in this case will not work a manifest injustice. First, there is no evidence in the record even remotely suggesting that the Respondent was relying on the state of Board law when it decided to take action against Borgs. Second, applying the rule in this proceeding serves to correct effects of the imposition of discipline on an employee for availing himself of the right to engage in protected activity, and thus serves the purpose of promoting the right of employees to engage in concerted activity for mutual aid and protection. Indeed, the purposes of the Act are not served by subjecting Borgs to the continued consequences of his discharge. Finally, we see no great injustice to the Respondent in finding a violation here and requiring the reinstatement of Borgs, particularly in view of the 8(a)(1) findings by the judge that have not been excepted to,[13] as well as those discussed infra, which demonstrate that the Respondent was not receptive to the right of its employees to engage in protected concerted activity.

Accordingly, for all these reasons, we find that by discharging Arnis Borgs for demanding that a coworker accompany him at an investigatory interview, the Respondent violated Section 8(a)(1) of the Act as alleged.[14]

The Reprimand and Discharge of Ashraful Hasan

As discussed above, Hasan worked as a transition specialist for the Respondent’s school-to-work transition project. The record shows that, beginning around August 1995, Hasan engaged in concerted activity together with Borgs. From August through December 1995, Hasan and Borgs organized and engaged in a brown bag lunch program whereby employees would get together to discuss matters of mutual concern. Further, in November 1995, Hasan and Borgs started an ethics committee which gave employees an opportunity to address problems concerning employee relations and delivery of service to clients. Two meetings of the ethics committee were held in November 1995, and minutes of the meetings were posted at the Respondent’s office.

In addition, sometime prior to October 5, 1995, Hasan reviewed his personnel file and discovered a memo from Berger, dated June 7, 1995, referencing an earlier misunderstanding Hasan and Borgs had with Berger concerning the hiring of an interpreter without following the Respondent’s subcontracting procedure. Although Hasan and Borgs believed that the misunderstanding surrounding this incident had been resolved to everyone’s satisfaction, the memo stated that Hasan and Borgs had been given verbal warnings for their actions concerning this incident. On October 5, 1995, Hasan wrote a memo to Berger in which he complained about the warnings in the personnel files and demanded an explanation. Hasan gave copies of the memo to Borgs and Loehrke. Shortly thereafter, Berger, with the assistance of Loehrke, sent a responding memo to Hasan which criticized the insubordinate tone of Hasan’s memo and accused Hasan of undermining Berger’s supervision of Borgs by sending a copy of the memo to him.

Also, as set forth above, Hasan—along with Borgs—prepared the January 17 and 29 memos criticizing Berger’s supervision of them. As with Borgs, Hasan was directed to meet with Loehrke and Berger on February 1. Unlike Borgs, however, Hasan agreed to meet alone with them. At this meeting, Loehrke expressed her displeasure with the January 17 memo.[15] Hasan responded by stating that the memo was a needs assessment. Hasan was then given a written warning, stating that the January 17 memo constituted insubordination and that any further acts of misconduct or insubordination by Hasan would result in his immediate discharge.

Thereafter, about March 6, Berger gave Hasan a copy of his evaluation. Hasan did not sign off on the evaluation, and told Berger that he would be adding some comments to the evaluation, as he had done on previous evaluations. About March 13 or shortly thereafter, Berger presented Hasan with written personal performance goals. As with his evaluations, Hasan had some comments to add to the performance goals, and consequently did not sign off on the document upon receiving it from Berger.

On March 25, Hasan was called to Loehrke’s office whereupon she advised him that he was terminated.[16] On March 29, Hasan was given a termination letter from Loehrke explaining that over the past nine months the Respondent had raised concerns with Hasan about his conduct. The letter further indicated that the more serious concerns included Hasan’s continued refusal to accept supervision, and Hasan’s various confrontations with other staff members. The letter did not discuss or refer to any specific incident, but stated that he was being terminated because of his “demonstrated conduct.”

The judge found that the Respondent did not violate Section 8(a)(1) of the Act by reprimanding and terminating Hasan. The judge began his analysis by finding no evidence of animus towards Hasan’s involvement with the brown bag lunch program and the ethics committee. The judge further found that these events, as well as the October dispute concerning the memo in the personnel files, although protected, were remote in time and unrelated to the events leading to his discharge.

The judge next found that the January 17 memo to Berger from Hasan and Borgs, although concerted, was not activity protected by the Act. Specifically, the judge rejected the assertion that the memo was a needs assessment, and instead found it to be an attempt by Hasan and Borgs to dismiss Berger as their supervisor on the project. The judge also regarded the January 29 memo as nothing more than an after-the-fact attempt at damage control. Thus, the judge found the memo writing was not protected because it failed to raise concerns about the quality of the project or of Berger’s supervision. Accordingly, the judge found the Respondent’s reprimand of Hasan for this conduct did not violate Section 8(a)(1).

Finally, the judge noted that the record showed that Hasan had been involved in several incidents having nothing to do with protected activity, including the incidents involving the hiring of the interpreter, his demands for preferential clerical assistance, an incident in which Hasan was accused of not showing sensitivity towards the parents of an agency client, and Hasan’s failure to sign the Respondent’s statement of performance objectives. In view of these incidents, as well as the circumstances surrounding the January memos, the judge concluded that there was no evidence to support an inference that animus towards protected activity was a motivating factor in the Respondent’s decision to discharge Hasan. Accordingly, the judge found that the Respondent’s discharge of Hasan did not violate Section 8(a)(1) of the Act.

We disagree with the judge’s finding that Hasan’s reprimand and discharge were lawful. Applying the principles set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 800 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), we find, contrary to the judge, that the General Counsel has shown that Hasan’s protected activity was a motivating factor in the Respondent’s decision to reprimand and thereafter terminate him, and that the Respondent has failed to show that it would have taken this action against Hasan even in the absence of his protected activity.

We find error with the judge’s primary finding with respect to Hasan, i.e., that the January 17 memo by Hasan and Borgs did not constitute protected concerted activity. Specifically, we disagree with the finding that the memo was not protected because it was an attempt to dismiss Berger as their supervisor. Even assuming that was the sole or primary purpose of the memo, such purpose does not remove the conduct from the protections of the Act. Indeed, the attempt by employees to cause the removal of their supervisor is protected when “it is evident that [the supervisor’s conduct] had an impact on employee working conditions.” Caterpillar, Inc., 321 NLRB 1178, 1179 (1996), vacated as moot (March 19, 1998), citing Hoytuck Corp., 285 NLRB 904 fn. 3 (1987). Clearly, Berger’s supervisory duties had a significant impact on Hasan’s terms and conditions of employment, as evidenced by the warnings he received, his evaluations, and his ultimate discharge.[17]

We also find, contrary to the judge, that the January 17 memo was inextricably intertwined with the January 29 memo, which also implicated terms and conditions of employment by its discussion of the problems they were having with Berger. Thus, insofar as Loehrke and Berger had read both memos by February 1, they fully understood that the issues raised in the January 17 memo were not separate from the concerns about Borgs and Hasan were being treated by their supervisor as set forth in the subsequent memo.[18] Thus, the memo writing clearly was an attempt by Hasan and Borgs to raise issues related to their conditions of employment, and, consequently Loehrke’s reprimand of Hasan for engaging in this conduct violated Section 8(a)(1) of the Act.[19]

We further find that, in view of our finding that Hasan’s involvement in the January 17 memo constitutes protected concerted activity, the Respondent’s termination of Hasan was unlawful. Indeed, as noted above, the Respondent placed Hasan on the verge of termination for his involvement with the memo, as evidenced by the formal reprimand which included the warning that any other acts of misconduct would result in his termination. Also, Hasan’s termination letter referred to concerns the Respondent had raised about Hasan’s conduct over the past 9 months, and during this period Hasan had angered the Respondent by protesting the written warnings placed into his and Borgs’ personnel files. We agree with the judge that this conduct by Hasan constituted protected activity. Thus, it is clear that the Respondent’s animus towards Hasan’s protected activity was a motivating factor in its decision to terminate him. Accordingly, we find that General Counsel has established a prima facie case under Wright Line that Hasan’s discharge was unlawful.

We further find that the Respondent has failed to sustain its burden under Wright Line of showing that it would have discharged Hasan even absent his protected concerted activity. The Respondent contends that it discharged Hasan because he refused to sign the statement of personal project objectives Berger gave him. It is apparent, though, that the discharge was not solely due to the failure to sign the performance objectives, but rather was linked to the Respondent’s anger at Hasan for his protected activity, especially his involvement with the January 17 memo. Indeed, Loehrke testified that the failure to sign was the “final straw” for her. Further, as noted above, Hasan was warned that any future acts of misconduct would result in his discharge, thus further suggesting that the failure to sign would not, by itself, warrant discharge. Moreover, we note that Hasan’s termination letter made no reference to the failure to sign the performance objectives, thus casting further doubt as to whether the Respondent was actually discharging him for that reason, as it contends. In view of these facts, we are unable to conclude that the Respondent would have discharged Hasan in the absence of his protected activity, and accordingly find that its discharge of Hasan violated Section 8(a)(1) of the Act.

ORDER

The Respondent, Epilepsy Foundation of Northeast Ohio, Cleveland, Ohio, its officers, agents, successors and assigns, shall

1. Cease and desist from

(a) Coercively interrogating employees concerning concerted activity protected by the Act.

(b) Issuing disciplinary warnings to employees for disclosing or discussing their wages with other employees.

(d) Maintaining a rule prohibiting employees from disclosing or discussing their wages with other employees.

(e) Issuing disciplinary warnings to employees for engaging in protected concerted activities.

(f) Discharging employees for engaging in protected concerted activities.

(g) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Rescind its policy prohibiting employees from discussing their wages with other employees.

(b) Within 14 days from the date of this Order, offer Arnis Borgs and Ashraful Hasan full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.

(c) Make Arnis Borgs and Ashraful Hasan whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest computed in the manner set forth in New Horizons for the Retarded, 283 NLRB 1173 (1987).

(d) Within 14 days from the date of this Order, remove from its files any reference to the unlawful warnings and discharges, and within 3 days thereafter notify the employees in writing that this has been done and that the warnings and discharges will not be used against them in any way.

(e) Preserve and, within 14 days of a request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order.

(f) Within 14 days after service by the Region, post at its facility in Cleveland, Ohio, copies of the attached notice marked “Appendix”[20] Copies of the notice, on forms provided by the Regional Director for Region 8, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed down the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since December 28, 1995.

(g) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the region attesting to the steps that the Respondent has taken to comply.

Dated, Washington, D.C. July 10, 2000

John C. Truesdale, Chairman

Sarah M. Fox, Member

Wilma B. Liebman, Member

(seal) National Labor Relations Board

Member Hurtgen, dissenting in part.

In E.I. Dupont & Co., 289 NLRB 627 (1988), the Board held that Weingarten1 rights do not apply to employees in nonunion facilities. This principle has been followed since that time, and no court has disagreed with it. Nor is there a showing that the principle has led to industrial strife. Despite all of this, my colleagues now abruptly reverse precedent and apply Weingarten to nonunion facilities. By so doing, they take away from a nonunion employer its heretofore unfettered right under the Act to deal individually with its employees.

Initially, I note that there are values in having laws that are stable, predictable and certain. Thus, we should not reverse important legal doctrine in the absence of compelling considerations for doing so.

In finding such compelling considerations, the majority says that extant law “infringes upon Section 7 rights and is inconsistent both with Supreme Court precedent and the policies of the Act.” I disagree. As discussed below, Section 7, at most, protects nonunion employees in their seeking assistance at an investigatory interview.2 Section 7 does not require the employer to accede to that request. As also discussed below, neither Supreme Court precedent nor the Act compels the employer to accede to the request. Thus, the employer has a right to decline the request, and to proceed with the interview with the employee alone. If the employee refuses to be interviewed, he/she is insubordinate and can be disciplined for such insubordination.

To the extent that there are compelling considerations, they point toward preserving the status quo. These considerations are set forth in Dupont, and there is no need to repeat them here. I need add only a few further thoughts, and a refutation of the arguments of my colleagues.

First, let us be clear that the issue is not whether an employee has a Section 7 right to seek the assistance of a co-employee at an investigatory interview. I assume arguendo that there is a Section 7 right to seek such mutual aid or protection, and that an employer therefore could not discharge an employee for seeking that assistance. However, the issue here is whether the employer is obligated to grant the employee’s request. That is, does federal law forbid a nonunion employer from dealing individually with an employee during an interview with that employee? Phrased differently, does the employer violate the Act if the employer requires the employee to attend the interview by himself, and discharge the employee for insubordination if he refuses? In Dupont, those questions were answered in the negative, and my colleagues would now answer them in the affirmative.

The current law is well grounded in Weingarten itself. As noted above, the Supreme Court held that, in a unionized setting, the employee is entitled to union representation at the interview. The Court’s rationale is instructive:

The union representative whose participation [the employee] seeks is however safeguarding not only the particular employee’s interest, but also the interests of the entire bargaining unit by exercising vigilance to make certain that the employer does not initiate or continue a practice of imposing punishment unjustly.

Clearly, in a unionized setting, the “union representative” is charged with “safeguarding . . . the interests of the entire bargaining unit”. Equally clearly, in a nonunion setting, there is no “union representative”, and there is no “bargaining unit”. Thus, it is plain that the Court in Weingarten did not envisage rights to representation in a nonunion setting.

Further, the differences between a unionized work force and a nonunion workforce are clear and obvious. The employer in the former situation acts at its peril when it deals directly with an employee with respect to an employment-related matter. By contrast, in a nonunion setting, the employer is completely free under the Act to deal with an individual employee as it wishes.3 My colleagues have now obliterated that clear line. They forbid the nonunion employer from exercising its management right to interview an employee on an individual basis.

There is another difference between a unionized context and a nonunion context. As the Court noted in Weingarten, the presence of a union representative in a unionized context may actually help the interview process. The union representative knows the discipline provisions of the collective-bargaining agreement, and can offer those relevant insights at the interview. Also, the union representative knows the grievance-arbitration provisions of the agreement, and can apprise the employer of the risks that it faces if discipline is imposed.

None of this is true in a nonunion setting. There is no collective-bargaining agreement, and there is no grievance-arbitration provision under such an agreement. Of course, this is not to say that an employee-assistant in a nonunion setting would be unintelligent or unhelpful. It is simply to recognize that such an assistant is not offering the same insights as does a union representative who operates under a union contract containing discipline provisions and grievance-arbitration procedures.

My colleagues have altered the delicate balance achieved in Weingarten. That balance involves the “difficult and delicate responsibility of reconciling conflicting interests of labor and management.”4 More particularly, the balance is between the individual employee’s interest in assistance at the interview and the employer’s interest in having an unfettered investigation of allegations of misconduct.

In striking that balance, the Court noted, inter alia, the unions’ interest in representing all of the unit employees, the expertise and special knowledge of the union representative, and the industrial practice under which many collective-bargaining agreements contain “Weingarten - type” provisions. Of course, none of these factors is present in a nonunion situation. Thus, the delicate balance in favor of representational assistance in a unionized situation tilts decidedly the other way in a nonunion situation.

Moreover, by grafting the representational rights of the unionized setting onto the nonunion workplace, employers who are legitimately pursuing investigations of employee conduct will face an unknown trip-wire placed there by the Board. Employers in a nonunion setting will generally be completely unaware of this right to representation that the Board is imposing on them. The workplace has become a garden of litigation and the Board is adding another cause of action to flower therein, but hiding in the weeds.

Finally, my colleagues assert that it is speculative to say that the presence of a third party would impair the interview. In this regard, my colleagues have missed the point. In a nonunion setting, the employer makes the judgment as to whether the interview would be enhanced or impaired by the presence of a third party. If the employer makes the judgement that the interview would be impaired, it is not the role of the Government to say that this judgement is incorrect.

The same point obtains with respect to the majority’s assertion that the employer is free to forego the interview. Again, if the employer makes the judgment that an interview is more helpful than a non-interview (in terms of ascertaining facts), that is a judgement for the employer to make.

For all of the foregoing reasons, I would uphold extant law, and find no violation.5 In addition, even if extant law is now changed (as it is by my colleagues), it is most unfair to apply the new law to Respondent in this case. The Respondent acted consistently with extant law when it denied Borgs’ request for representation. Rather, it was Borgs who acted contrary to legal principles when he insisted on representation. In these circumstances, it is “manifestly unjust” to now say that Respondent was the one who acted unlawfully.6

Discharge of Hasan

I agree with the judge that the discharge of Hasan was lawful. The judge found, as a fact, that Hasan was discharged because of the January 17 memo from Hasan and Borgs to Berger (copy to Executive Director Loehrke). The judge also found, as a matter of law, that the memo was unprotected. Clearly, the judge was correct. The memo sought the dismissal of Berger as a supervisor. The act of seeking the dismissal of a supervisor is unprotected, unless there is a showing that the dismissal is sought as a means of rectifying supervisory conduct which has a direct adverse impact on the employee’s terms and conditions of employment.7 Here, the memo did not even mention any adverse impact of Berger’s conduct. It simply declared that Berger’s supervision was no longer required. Indeed, the memo expressed gratitude for Berger’s past services.

My colleagues misread my position with respect to the January 17 memo. I am not saying that the letter seeking the supervisor’s discharge must itself refer specifically to the manner in which the supervisor affects employees. Rather, I am saying that the General Counsel must establish, in some fashion, that supervisory conduct affected the employees, and that this was the reason for their seeking the discharge of the supervisor. In the instant case, this showing is not made in either the January 17 memo or in any other way.

Hoytuck, 285 NLRB 904 (1987), and Lutheran Social Services, supra, support my position. In Hoytuck, the Board held that the employee complaints against the supervisor were protected “because it is evident that . . . [the supervisor’s] conduct had an impact on employee working conditions”. The same point is made in Lutheran Social Services, supra. The employee activity against supervisors was unprotected because “employees were protesting management policies that did not directly affect them as employees.”8

In sum, the January 17 memo was unprotected because it sought the discharge of supervisor Berger. There is no showing that the effort to discharge the supervisor was prompted by supervisory conduct affecting employees’ terms and conditions of employment. The January 17 memo did not become protected by reason of the later memo of January 29. The Respondent was critical of the January 17 memo, and thus Hasan and Borgs wrote another memo on January 29. As the judge correctly found, this memo was simply an after-the-fact attempt at damage control. In any event, the January 29 letter did not raise the anger of the Respondent. Indeed, the Respondent, through Loehrke, met with Hasan to discuss that memo. It was the January 17 letter that raised the anger of Respondent, and that letter was unprotected.

Finally, although Hasan may have engaged in earlier protected activities, the judge found that they were not the cause of the discharge. Indeed as my colleagues concede, the discharge was linked to the Respondent’s anger over the January 17 memo.

Dated, Washington, D.C. July 10, 2000

Peter J. Hurtgen, Member

National Labor Relations Board

Member Brame, dissenting in part.1

A. Introduction

This case presents the Board with yet another opportunity to consider whether the right of unionized employees to have a union representative present, on request, at investigatory interviews with employers should be extended to the nonunionized workplace.2 The General Counsel has requested that the Board overrule its most recent decision in this area, holding that nonunionized employees do not enjoy such a right,3 and return to a past interpretation of the Act, which would bestow this right on such unrepresented employees.4 My colleagues in the majority have decided to do just that. The National Labor Relations Act (hereinafter “the NLRA” or “the Act), however, does not provide for such protection for nonunionized employees, and to interpret it in such a way both disrupts the balance between the powers of labor and management struck by Congress in the Act and the balance struck by this Board in its long history of interpreting the Act.

Finding an 8(a)(1)5 violation by the Respondent in this case for its discharge of an employee who refused to meet with his supervisors without a coworker present creates a representational right in employees who have not made the choice to be represented by a union. This decision endows nonunionized employees with a right of representation in one specific situation, although they have not elected a union to represent them in any of their other dealings with management. Such a grant of rights wreaks havoc with the scheme created by the Act, and a proper interpretation of the Act would require a finding that such unrepresented employees are not entitled to a special right of representation in this one situation. Forcing a nonunionized employer to deal with an employee representative, when it is properly free to deal individually with its unrepresented employees with regard to all other terms and conditions of employment, is simply an incorrect interpretation of the Act. The mere fact that unionized employees enjoy a Section 7 right to act in concert for mutual aid or protection by having a union representative at investigatory interviews upon request does not mean that unrepresented employees enjoy the same right. As explained in detail below, the scope of Section 7 rights can and does vary based on whether employees are unionized.

Additionally, even if my colleagues’ approach were a permissible interpretation of the Act, it is not a reasonable one. As explained in detail below, there are very specific reasons for allowing organized employees to have a union representative present at investigatory interviews that employees reasonably believe may result in discipline. Such a union representative is knowledgeable and experienced and has the ability to help both the individual employee and the employer as well as the ability to safeguard the interests of the entire bargaining unit. A mere coworker brings few if any of the same qualities to the table. Because I do not think that the majority’s interpretation of the Act is a correct one or a reasonable one, I dissent from their decision to return to what I believe to be an unsound rule.

My colleagues in the majority would also find that the second discharge at issue in this case violated Section 8(a)(1). I cannot agree with this decision either. The second discharge resulted from an employee’s attempt to remove his supervisor. Such conduct, even when concerted, is not protected unless the employee is protesting activity by a supervisor that has a direct impact on the employee’s working conditions. Here, the protest at issue, a memo sent to the supervisor, referenced no supervisory conduct whatsoever, but merely asserted that the supervisor was no longer necessary. Because an attempt to remove a supervisor is not protected activity, I must dissent from my colleagues’ determination that the Respondent violated the Act when it discharged this second employee.

B. The Facts and Findings

In 1993, The Epilepsy Foundation of America (“EFA”) selected the Respondent, an EFA affiliate, to conduct a three-year project related to school-to-work transitions for teenagers with epilepsy (hereinafter “the project”). The Respondent’s Executive Director, Christine Loehrke, was responsible for overseeing the project, and Respondent’s Director of Vocational Services, Rick Berger, acted as the project’s on-site supervisor. The two employees at issue in this case are Dr. Ashraful Hasan, a full-time Transition Specialist on the project, and Arnis Borgs, an Employment Specialist.

During 1995 and 1996, Hasan and Borgs engaged in certain conduct that is at issue in this case. First, between August and December 1995, they took part in a Brown Bag Lunch program through which employees met approximately six times during lunch hours to talk about issues that concerned them. Also, in November 1995, Borgs and Hasan initiated an Ethics Committee, which met twice and gave employees a chance to address problems with employee relations and client-service delivery.

On June 7, 1995, Supervisor Berger wrote a memorandum regarding an incident involving Hasan, Borgs, and an interpreter and stating that Hasan and Borgs had been given verbal warnings for their conduct in relation to that incident.6 Hasan and Borgs claim that they discussed the incident with Berger, who told them that nothing negative would be placed in their personnel files. However, Hasan later found the warning memo in his file. In response, Hasan wrote a memo to Berger with copies to Loehrke and Borgs. Berger prepared a memo in response, apparently with Loehrke’s assistance, which criticized the “insubordinate tone” that Hasan had employed in his memo and complained about Hasan’s having undermined Berger’s supervision of Borgs by sending Borgs a copy.

With this background, Hasan and Borgs then engaged in the conduct most directly relevant to the discharges in this case. On January 17, 1996, Hasan and Borgs prepared and sent a memo to Berger, which stated that his supervision of the project was no longer required.7 They also sent a copy of the memo to Loehrke, although she was away from the office at the time. Upon learning that Berger and Loehrke were displeased with this January 17 memo, Hasan and Borgs, on January 29, submitted an eight-page memo to Loehrke, the stated intention of which was “to elaborate upon the reasons underlying” the January 17 memo. This January 29 memo detailed Hasan’s and Borgs’s alleged concerns about Berger.

Thereafter, on February 1, 1996, Berger informed Hasan and Borgs that Loehrke wanted to meet with each of them individually with Berger present. Hasan informed Berger that they were in the midst of a meeting and could not meet with Loehrke at that time. Loehrke herself then came to Hasan and Borgs and told them that they must meet with her and Berger. When Loehrke informed Borgs that he must meet with them, he refused and said that he would meet alone with Loehrke but not with both Loehrke and Berger. Loehrke informed Borgs that he must meet with both of them together. Borgs then asked if Hasan could attend the meeting with him, but Loehrke rejected his request. When Borgs continued to refuse to meet alone with Loehrke and Berger, Loehrke told him to go home for the remainder of the day and to return the next morning. Borgs was then told to surrender his key to the office and was escorted out of the building.

When he returned the next day, Borgs met with Loehrke and Jim Wilson, the Respondent’s Director of Administration. At that time, Loehrke informed him that his refusal to meet with her and Berger the previous day was gross insubordination and that he was terminated from employment. Borgs was also given a termination letter, which described his “gross insubordination” in failing to meet with Loehrke and Berger, noted that his involvement in the January 17 memo demonstrated an unwillingness to accept supervision, and explained that he had “fail[ed] to build constructive work relationships with management personnel” and had demonstrated a “resistance to accept[ing] responsibility for attempting to attain articulated performance goals.”

Unlike Borgs, Hasan did meet with Loehrke and Berger on February 1. At that time, Loehrke expressed her unhappiness with the January 17 memo,8 and Hasan told her that the memo was a needs assessment. Hasan also received a written warning, which stated that the January 17 memo constituted gross insubordination and that further acts of misconduct or insubordination would result in his immediate termination.

Later, on March 25, Loehrke informed Hasan that he was terminated.9 Hasan received a letter signed by Loehrke when he returned to pick up his belongings on March 29. The letter explained that he had been terminated as a result of his conduct over the previous nine months, specifically his refusal to accept supervision on the project and his confrontations with other staff members.

The General Counsel asserts that the Respondent discharged Borgs and Hasan because they had engaged in concerted activities and that the Respondent thereby violated Section 8(a)(1) of the Act. The judge indeed found that the Respondent did in fact discharge Borgs in retaliation for protected, concerted activities in which he had earlier engaged.10 However, the judge also found that the Respondent would have proceeded with its discharge of Borgs even in the absence of his protected activities and that, therefore, the Respondent did not violate the Act when it terminated Borgs’s employment. First, the judge found that the January 17 memo did not constitute protected, concerted activity and thus that discipline resulting from that memo was not a violation. Second, the judge determined that Borgs’s refusal to meet with Loehrke and Berger upon request constituted insubordination for which he properly could be disciplined under the Act despite his request to have Hasan present at the meeting.

Similarly, the judge determined that Hasan’s discharge did not violate the Act. First, the judge found that the General Counsel had failed to establish that the Respondent bore Hasan any animus based on his activities relating to the Brown Bag Lunch program, the Ethics Committee, or the interpreter incident. Additionally, the judge noted that these activities “were remote in time and unrelated to the events that led to [Hasan’s] discharge.” Second, the judge concluded that Hasan’s part in the January 17 memo did not constitute protected, concerted activity as argued by the General Counsel. In this regard, the judge noted that the January 17 memo did no more than attempt to dismiss Berger as Hasan’s and Borgs’s supervisor and did not raise concerns about the project or Berger’s supervision thereof. Additionally, the judge refused to accept Hasan’s and Borgs’s characterization of the January 17 memo as a needs assessment and instead found that that characterization as well as the detailed January 29 memo were in fact mere “after-the-fact attempts at damage control.”

My colleagues find that both discharges at issue in this case violated Section 8(a)(1) of the Act. With regard to Borgs’s discharge, my colleagues determine that his request to have Hasan present at the meeting with Loehrke and Berger was an exercise of his Section 7 rights11 and that the Respondent’s insistence that he meet without Hasan or be terminated restrained, interfered with, or coerced him in exercise thereof and thus violated Section 8(a)(1). In order to reach this finding, of course, my colleagues are forced to overrule Board precedent holding that unrepresented employees do not have a right to representation by a coworker at an investigatory interview with an employer even if they have a reasonable belief that the interview will result in disciplinary action. Because I find that the Act does not provide for such a right in unrepresented employees, I cannot join my colleagues’ decision in this regard.

With respect to Hasan’s discharge, my colleagues find that the Respondent violated Section 8(a)(1) because the January 17 memo was protected, concerted activity and additionally because that memo was “inextricably intertwined” with the January 29 memo, which clearly related to terms and conditions of employment. My colleagues therefore determine that the Respondent’s animus toward Hasan’s protected activity in writing the memos and in engaging in earlier concerted conduct with Borgs was the motivating factor behind its termination of his employment. Again, I cannot join in my colleagues’ decision; I agree with the judge that the January 17 memo was not protected, concerted activity and that, therefore, Hasan’s discharge, even if resulting from his involvement in the memo, was not violative of the Act.

ii.

A. Borgs’s Discharge

1. The Weingarten right

The issue of representation during investigatory interviews initially arose in cases involving unionized workforces. In 1975, the United States Supreme Court, in NLRB v. J. Weingarten, Inc.,12 approved of the Board’s approach to such cases. In Weingarten, the employer had called in an employee for questioning regarding allegations that she had taken money.13 During the course of the questioning, the employee several times asked the manager to call in the union shop steward or another union representative, and the manager refused to do so.14 The Supreme Court held that previous Board decisions finding that employees have a Section 7 right “to refuse to submit without union representation to an interview which [they] reasonably fear[] may result in [their] discipline”15 set forth “a permissible construction of” Section 7’s “concerted activities for . . . mutual aid or protection” language.16

In accepting the Board’s construction of the Act in this regard, the Court laid out “the contours and limits of the statutory right” as established by the Board in previous cases.17 The Court noted that the right of an employee to union representation upon request at an investigatory interview “inheres in § 7’s guarantee of the right of employees to act in concert for mutual aid and protection.”18 The Court then went on to explain that this right to representation would arise only when an employee actually requests representation19 and only when the employee has a reasonable belief that the investigation will result in some sort of disciplinary action.20 The Court then explained the employer safeguards that the Board had built into the representational right: First, although an employer may not force an employee to take part in an interview without his or her union representative, the employer is free to refuse to conduct the interview with a union representative present and instead proceed with the investigation without interviewing the employee at all.21 Second, the employer is not under any duty to engage in bargaining with a union representative who attends an investigatory interview.22

With these confines, previously limned by the Board, the Supreme Court accepted what has now become known as the Weingarten right of a represented employee to have present, upon request, a union representative at an investigatory interview with his or her employer. In the course of its opinion, the Supreme Court explained the relationship between this right and Section 7 of the Act. As the Court noted, when an employee seeks a union representative’s assistance at an investigatory interview, his or her conduct “clearly falls within the literal wording of § 7” even though the employee may be the only person with “an immediate stake in the outcome” of the interview and even though he or she is seeking “aid or protection” against the possibility of individual discipline.23 As the Court explained, the union representative from whom the individual employee seeks aid or protection is

safeguarding not only the particular employee’s interest, but also the interests of the entire bargaining unit by exercising vigilance to make certain that the employer does not initiate or continue a practice of imposing punishment unjustly. The representative’s presence is an assurance to other employees in the bargaining unit that they, too, can obtain his aid and protection if called upon to attend a like interview.24

The Court went on to explain that recognizing this Weingarten right effectuates one of the NLRA’s most important purposes—eliminating the “‘inequality of bargaining power between employees . . . and employers.’”25 Additionally, the Court emphasized that recognizing this right at the time of an investigatory interview can benefit the employer as well as the employee, because “[a] knowledgeable union representative could . . . elicit[ ] favorable facts, and save the employer production time by getting to the bottom of the incident.”26 In this regard, the Court quoted favorably language noting that participation of a union representative could assist both parties by helping to clarify the situation, the facts, and any collective-bargaining agreement clause that might be in issue and by limiting the filing of grievances by encouraging discussion at this early stage.27

Finally, after reiterating that the Board’s construction of the Act was an interpretation that was “at least permissible,” although perhaps not required, and that the Board had “engage[d] in the ‘difficult and delicate responsibility’ of reconciling conflicting interests of labor and management,” the Weingarten Court noted that the right at issue was “in full harmony with actual industrial practice.”28 In this regard, the Court explained that many collective-bargaining agreements already contained provisions according employees this right to representation and that “a ‘well-established current of arbitral authority’” had upheld such a right even when it was not explicitly provided for in a collective-bargaining agreement.29

2. Subsequent Developments

a. Materials Research Corp. and extending the Weingarten right

Since Weingarten, the Board has struggled with the issue of whether to extend the right approved in that case to a situation like the one in the present case in which an employee in a nonunionized workplace requests representation by a coworker at an investigatory interview with his or her employer. In 1982, the Board offered what appeared at the time to be its definitive answer to this issue. In Materials Research Corp.,30 the Board for the first time explicitly found a right to representation by a coworker at an investigatory interview in a nonunionized workplace. The Board acknowledged that the Supreme Court’s decision in Weingarten had referred only to union representatives but determined that that was due to the particular fact pattern under consideration there and not to any desire on the part of the Court to limit the right to such a setting.31 The Materials Research majority reasoned that, because the Weingarten Court had grounded the representational right in employees’ Section 7 rights, nonunionized employees should be accorded the same right as, for the most part, Section 7 protections do not vary based on whether one is represented by a union.32 The Board then pointed to its earlier decision in Glomac Plastics, Inc.,33 a case not clearly involving unrepresented employees34 but in which the Board nonetheless stated that “‘Section 7 rights are enjoyed by all employees and are in no wise dependent on union representation for their implementation.’”35 The Board further noted, again, that its decision in this regard was “buttressed” by Justice Powell’s dissenting opinion in Weingarten and his statement therein that the representational right would exist in a nonunionized setting as well.36

The Board then held that Weingarten “compels” a finding that unrepresented employees have a right to have a coworker present at an investigatory interview.37 In reaching this conclusion, the Materials Research majority noted specifically the following language from Weingarten:

Requiring a lone employee to attend an investigatory interview which he reasonably believes may result in the imposition of discipline perpetuates the inequality the Act was designed to eliminate, and bars recourse to the safeguards the Act provided “to redress the perceived imbalance of economic power between labor and management.”38

The majority then went on to explain that these considerations come into play regardless of whether an employee is represented by a union and that unrepresented employees may have an even greater need for support during an investigatory interview.39 The majority explained that unrepresented employees are without the safeguards of a collective-bargaining agreement, which checks an employer’s ability to act in an unjust or arbitrary way, and without the protections afforded by a grievance-arbitration procedure.40 According to the Materials Research majority, therefore, unrepresented employees should be able to look to coworkers for assistance during an investigatory interview in order to counteract this imbalance of power between employers and unrepresented employees.41

Chairman Van de Water and Member Hunter both filed vigorous dissenting opinions in Materials Research. In his dissent, Chairman Van de Water pointed out initially that employers are not statutorily obligated to recognize a representative of their employees unless that representative had been recognized by the employer or certified by the Board and that, without a recognized or certified union, employers are free to deal with employees individually.42 Conversely, when a union has been recognized or certified, an employer, under Section 9(a) of the Act, is required to deal with the union rather than with individual employees on matters related to terms and conditions of employment.43 As Chairman Van de Water explained, previous cases, dealing with the right of unionized employees to representation at investigatory interviews, had recognized that an employer’s refusal to allow an employee’s request for a representative at such an interview frustrates the employee’s right not to deal individually with the employer when the collective-bargaining relationship requires the employer to deal with the employee’s representative.44 Chairman Van de Water then noted that the Supreme Court’s decision in Weingarten was also centered on the existence of a collective-bargaining relationship.45

Chairman Van de Water went on to explain the repercussions that would result from finding a right to representation by a coworker at an investigatory interview. As Chairman Van de Water noted, the Supreme Court had described the role of a union representative in such a situation as someone who could “make proposals and suggestions to the employer concerning such things as alternative discipline and other possible avenues of investigation,” and the Board had previously found that employers had to allow such representatives “to play an active role in the discussions.”46 According to the Chairman, this prescribed role of a Weingarten representative “is strikingly similar to the role of a labor organization in its dealings with an employer.”47 Chairman Van de Water felt that, by extending this role to a nonunionized employee’s coworker, the Materials Research majority had succeeded in creating a hybrid relationship whose existence is justified solely by Section 7’s call for employee mutual aid and protection. It is a relationship of potential cost and limitations for the employer which exists without reference to other applicable provisions of the Act; one that exercises its powers without being subjected, in any way, to the responsibilities imposed upon other entities that exercise such powers; and it is a relationship to which the employer must render deference without being provided the normal safeguards which would otherwise be available.48

Chairman Van de Water next discussed how the Materials Research majority’s application of the Weingarten right to a nonunionized setting altered the employer-employee relationship with regard to a single aspect of terms and conditions of employment, thereby requiring employers to deal differently with employees for purposes of investigatory interviews as compared to all other terms and conditions. In this regard, the Chairman explained that such things as discussions about changes in pay scales, safety matters, and hours of work all would relate to an employee’s terms and conditions and could have an even greater negative impact on an individual employee than could some forms of discipline. Yet, as the Chairman explained, the Materials Research majority certainly would not require an employer, who wished to speak with an individual employee about such a matter, to allow that employee’s request to have a coworker present or forego the discussion altogether.49

Finally, Chairman Van de Water went on to explain why Section 7’s “mutual aid or protection” language by no means compels the Material Research majority’s result. Employees’ Section 7 rights are affected by whether or not they have selected an exclusive representative. For example, when employees have selected a representative, they are no longer free to deal with their employer on an individual basis, and the union is free to waive some employee rights.50 On the other hand, once they have opted for a union’s representation, employees gain the right to bargain collectively with their employer and to insist that any agreement that is reached be put in writing and signed.51 Thus, endowing only represented employees with the Weingarten right to representation under Section 7 would not be anathema to other applications of Section 7. Furthermore, as Chairman Van de Water explained, the mere fact that employee conduct is an attempt to obtain mutual aid or protection does not mean that an employer must accede to the request.52 To prove his point, the Chairman considered application of the Materials Research majority’s reasoning in a situation other than the Weingarten scenario. As he explained, employees in a nonunionized workplace could come together and agree to ask the employer to submit