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

I.

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 workplace changes to an employee majority vote.53  This conduct would clearly be in pursuit of mutual aid or protection against the possibility of “arbitrary or onerous employer actions,” and an employer would not be able to discipline the employees for merely making the request.54  However, the employer would not violate the Act by refusing the request and proceeding with the implementation of workplace changes in its usual manner.55 Chairman Van de Water then explained that the Weingarten situation in a nonunionized workplace should be treated in the same way, i.e., “employees who request the presence of a fellow employee at an investigatory interview are seeking mutual aid and protection and an employer would violate the Act by punishing an employee for seeking that protection.”56  However, according to Chairman Van de Water, nothing

in the Act would require the employer to accommodate the employee’s request or forego the interview.57

As previously noted, Member Hunter also dissented from the Materials Research majority’s determination that unrepresented employees enjoy a Weingarten right to representation.  Member Hunter first noted, along the same lines as Chairman Van de Water, that the Weingarten decision itself was grounded in the collective-bargaining relationship and in the Court’s concern for the bargaining representative’s right to protect not only the interests of the individual employee but the interests of the entire unit, a concern not present in the nonunionized setting.58 Member Hunter next turned to the “practical reasons” for refusing to extend Weingarten to the nonunionized setting.  Member Hunter explained that, while the Supreme Court in Weingarten had focused on “the important role a knowledgeable union representative could play in assisting the employer by eliciting favorable facts and the like,” the same could not be said in the nonunionized setting.  Instead,

the employer in the nonunion situation is likely to find itself confronted by a “representative” who has few or even an absence of the skills or responsibilities that one would expect from a union steward.  It must therefore deal with a person who has no experience in dealing with these situations and who, out of probable friendship for the interviewee, may be involved emotionally in the interview.59

Despite these two vigorous dissents, the Materials Research majority won the day and established a right in unrepresented employees to representation by a coworker at investigatory interviews.  As explained below, however, the right was not long-lived.

b.  Limiting the Weingarten Right

Just three years after its decision in Materials Research, the Board overruled that case and found that unrepresented employees do not enjoy a Weingarten right to representation.  In Sears, Roebuck & Co.,60 the Board “fully endorse[d] former Chairman Van de Water’s dissenting opinion” in Materials Research.61  The Sears Board explained that the Weingarten right is clearly appropriate in a unionized setting because, in such a workplace, the union has been “vested with the exclusive authority to represent unit employees and deal with the employer on all matters involving terms and conditions of employment, including . . . discipline.”62  Thus, when a unionized employer seeks to do something that will affect an employee’s terms or conditions, it is not free to deal individually with the employee when that employee objects.63  The situation is different, however, when the workforce is not unionized;  in such a situation, “an employer is entirely free to deal with its employees on an individual, group, or wholesale basis” with regard to all terms and conditions, including discipline.64  According to the Sears Board, the Materials Research decision required nonunionized employers to deal collectively with their employees, a result that “fundamentally alters our statutory scheme” and “wreaks havoc with fundamental provisions of the Act.”65

The Sears Board then went on to reject the reasoning employed in Materials Research.  In Sears, the Board explained that reliance on Weingarten’s basis in Section 7 was misplaced because “[t]he scope of Section 7’s protections may vary depending on whether employees are represented or unrepresented.”66  Additionally, the Sears Board rejected the Materials Research Board’s reliance on the fact that a Weingarten representative “is not cloaked with full collective-bargaining authority.”67  Although the Sears Board acknowledged that this was an accurate statement of the limitation placed on a Weingarten representative, it explained that “the representative acts as a representative for the employee being interviewed and all other employees in the unit.”68  This fact, in addition to the Board’s previous holding that Weingarten representatives must be allowed to speak and be free to make proposals or offer alternatives, constituted “‘dealing with’ the employer, and ‘dealing with’ an employer is a primary indicium of labor organization status as well as a traditional union function.”69  It would run “contrary to the Act’s exclusivity principle” to force a nonunionized employer “to recognize and deal with the equivalent of a union representative.”70

Member Hunter filed a separate concurring opinion in Sears because he felt that the Act does not compel the Sears decision;  rather, according to Member Hunter, extending Weingarten rights to nonunionized employees would be “a permissible but not a reasonable construction of the Act.”71  Member Hunter then went on to explain why, in his opinion, overturning Materials Research was the most reasonable approach.  First, he pointed out that Materials Research, by equating the Section 7 rights of unionized and nonunionized employees, gave “representation to employees who have not chosen to be represented,” despite the fact that employees’ Section 7 rights can vary depending on whether they are represented by an exclusive bargaining agent.72  Member Hunter went on to decry the Materials Research majority’s “denigration” of “the knowledge, skill, and experience which the union representative typically brings to the investigatory interview” as well as its failure to take notice of the fact that a union representative is “charged with the concerns of the unit as a whole.”73  Member Hunter then went into some detail about how these differences in the unionized and nonunionized settings could affect the efficacy and role of a Weingarten representative:

In the represented setting, the employer regularly deals with the union representative on matters besides the investigatory interview.  There is more likelihood that the employer then will permit greater participation from the union representative at the investigatory interview because the employer knows that he may face the union representative again on this matter in a postdiscipline grievance or on other related matters.  In addition, with the union representative, there is more impetus on the employer to make consistent disciplinary decisions because the union representative manifests an apparent solidarity of the employees in the unit.  The presence of the union representative also has a beneficial effect for employers in that his presence may discourage frivolous grievances and reduce the costs of nonfrivolous grievances. . . .  [I]n the unrepresented setting, there is an unlimited pool of potential witnesses at these interviews since the employee can choose any coworker he likes.  This unlimited pool can hinder continuity and speedy investigations which the employer seeks.74

Because of these differences in the two settings, Member Hunter concurred in the Sears majority’s decision to overturn Materials Research, despite his understanding that neither result was compelled by the Act or by Weingarten.

Three years after Sears was decided, Member Hunter’s approach basically became the majority approach to the Weingarten question in the nonunionized setting.  In E.I. DuPont& Co.,75 the Board reconsidered Sears after a remand from the Third Circuit in which the court held that “the Board erroneously assumed that the Act mandated its interpretation” and directed the Board to consider whether “it would be a permissible interpretation of the Act to conclude that unrepresented employees are not entitled to the presence of a coemployee during an investigatory interview.”76  In DuPont, the Board proceeded to overrule that part of Sears that held that the Act compelled the finding that unrepresented employees do not enjoy a Weingarten right to representation by a coworker at an investigatory interview.77  Rather, the DuPont Board held that, although the Materials Research decision might have been a permissible interpretation of the Act,78 the proper balance between labor and management’s conflicting interests is “better served” by not extending the Weingarten right to the nonunionized workplace.79 

The Board considered the factors that supported the different balance struck in Weingarten itself and how these factors fared in the nonunionized workplace.  While the Weingarten Court had emphasized the fact that a union representative could safeguard the interests of the entire bargaining unit in addition to those of the individual employee, the Board explained that there is no such guarantee in the nonunionized workplace.80  Similarly, a coworker would be less likely than a union representative to be able to keep an employer from engaging in unjust conduct, because there would not be a collective-bargaining agreement to define misconduct and how to ameliorate it and because the coworker probably would not have access to information about how other employees had been treated under similar circumstances.81 

The DuPont Board then went on to explain that a Weingarten representative in a nonunionized setting would also be less helpful to an employer than would a union representative.  While a union representative may assist the employer by helping to elicit facts and to speed things along, such assistance from a fellow employee would be less likely, because such a fellow employee would probably have no experience with such interviews and might be emotionally involved in the outcome due to his or her relationship with the interviewee.82  Similarly, the likelihood of “heading off formal grievances,” a factor weighing in favor of the presence of a union representative, would not come into play in a nonunionized workplace where no collective-bargaining agreement would provide for formal grievance procedures.83

The DuPont Board then proceeded to consider the situation that would arise if an employer decided, as is its prerogative under Weingarten, that, rather than have a representative present, it would prefer to forego the interview altogether.  In a unionized workplace, although the employee would lose the opportunity to explain the incident at issue, if discipline resulted, the employee would still be able to avail himself or herself of whatever grievance procedures had been provided through the collective-bargaining process.84  An employee in a nonunionized workplace, however, would have no such safeguard.  Thus, as the Board explained:

To the extent that recognition of a nonunion Weingarten right induces employees to insist on a condition that may in turn induce employers simply to cancel investigatory interviews (unless the employee waives his Weingarten right), there is a serious question whether extending the right to nonunion employees may not work as much to their disadvantage as to their advantage.85

In light of all of these factors, the DuPont Board determined that it would “best effectuate the purposes of the Act” by endowing only unionized employees with the right to a Weingarten representative on request.86  The Board did note that it was not implying that a nonunion employee does not have a right to make a request for representation at an investigatory interview.87

3.  Should Weingarten Now Be Re-Extended?

With this background, the issue of Weingarten representation in nonunionized workplaces has arisen again, and today, my colleagues in the majority decide once again to move away from Sears and DuPont and back to Materials Research and find that the Respondent in this case has violated Section 8(a)(1) by discharging Borgs for refusing to meet with Loehrke and Berger in the absence of his coworker Hasan.  I, however, would find that the Respondent has not violated the Act, because nonunionized employees do not enjoy a Weingarten right to representation by a coworker.  Furthermore, I would return to Sears and find that this conclusion is compelled by the Act.

As explained in detail above and in both Chairman Van de Water’s dissenting opinion in Materials Research88 and the Sears opinion,89 a nonunionized employer is under no duty to recognize an employee representative until it has achieved recognitional status satisfactory to the employer or has been certified by the Board.90  Prior to this recognition or certification, a nonunionized employer may deal on an individual basis with its employees with regard to all terms and conditions of employment.  By finding that nonunionized employees have a Weingarten right to representation during investigatory interviews, my colleagues carve out an area in which they force nonunionized employers to deal collectively with employees, a result that is completely at odds with the intent and structure of the Act.

My colleagues’ reliance on the applicability of Section 7 rights to nonunionized as well as unionized employees is misplaced.  As explained above, the scope of Section 7 rights can and does vary depending on whether employees have a recognized or certified exclusive bargaining representative.  Here, nonunionized employees would clearly have the right to request that a coworker attend an investigatory interview,91 but their employers just as clearly are permitted to deny that request.  Any other result creates a situation in which nonunionized employers, who have no duty to bargain or deal with an employee representative with regard to any other terms and conditions of employment, are burdened with this duty in one particular situation, that of investigatory interviews that may result in discipline.92  My colleagues offer no explanation as to why this one situation should be treated any differently from a myriad of other situations in which an individual nonunionized employee may request the presence of a coworker at a meeting with the employer that is related to any term or condition of employment.  Do nonunionized employees then have a right to insist on such representation when their employer wishes to discuss compensation or work hours with them individually?  To so hold would obviously alter the structure of our Act and our long-standing interpretation of it.93  It makes no more sense to carve out this term or condition of employment and endow nonunionized employees with a right to representation in the particularized situation of investigatory interviews.94

Although I think that it is clear that the Act compels a finding that nonunionized employees are not entitled to a Weingarten right, I think that it is equally clear that, even if this result were not compelled, it is the better approach because it more properly balances the interests of labor and management.  First, as Member Hunter noted in his dissenting opinion in Materials Research95 and as explained by the Board in DuPont,96 a coworker-representative does not bring the same level of assistance to an investigatory interview as does a union representative.  As explained above, a union representative serves the interests of both employee and employer at an investigatory interview by eliciting facts and helping to avoid the filing of frivolous grievances. A coworker-re-presentative, however, is less likely to have experience with such interviews and, as Member Hunter has noted, may be emotionally involved.97  My colleagues in the majority respond to these concerns by asserting that they are “wholly speculative.”  It seems more speculative, however, to assume that a lone individual, selected on the spur of the moment, will advance the interests of the unit.  By contrast, an experienced union representative who is familiar with the lore of the shop floor and who regularly deals with the employer in a variety of matters, including the processing of grievances, is likely to be of more assistance to both employer and employee at a Weingarten interview than is a coworker who may never have even attended such an interview or had any dealings with the employer beyond that of an employee.  In fact, in the nonunionized setting, an employee is apparently free to choose any coworker as a representative, including someone who is personally involved in the matter under investigation, a result that certainly could lead to “representatives” who are not only hostile to the employer but extremely unlikely to be of any assistance to the employer in objectively getting to the bottom of the incident at issue.98

Another practical reason for refusing to extend the Weingarten right to the nonunionized setting relates to a separate point raised by the Supreme Court in Weingarten.  As explained previously, the Court emphasized the fact that having a union representative present during an investigatory interview could help to safeguard the interests of the bargaining unit generally.  There is no similar guarantee in the nonunionized workplace.  A coworker, chosen as a representative by an employee for his or her own personal reasons, may or may not have the interests of the rest of the workforce in mind.  A coworker-representative certainly would not have the same kinds of incentives to look out for these wider interests that a union representative would.  My colleagues in the majority again dismiss this concern as “wholly speculative.”  However, the fact that a given coworker-representative might act in the interests of the workforce as a whole does not overcome the very real concern that the likelihood of safeguarding the interests of an entire unit of employees is much more likely to occur in the unionized setting than the nonunionized setting.99

Because the factors that weighed in favor of Weingarten representation in the unionized setting are absent or at least drastically reduced in importance in the nonunionized setting, I would find that a proper balance of labor and management interests should not result in imposing the burden of Weingarten representation on employers in the nonunionized setting.  Nonunionized employers should not be burdened with a duty either to accede to an employee’s request for a coworker-representative or to forego an investigatory interview when neither the employee nor the employer is significantly assisted by the presence of such a representative.  Moreover, as explained above, I would find that the NLRA itself forbids this result, a result that places a duty to recognize a representative in a specific, limited, and apparently arbitrary situation on an employer that is otherwise free to deal with employees individually.  Because the result reached by the majority in this case runs counter to the Act and does not properly balance the interests of labor and management, I must dissent.

B.  Hasan’s Discharge

As explained above, the Respondent issued a written warning to Hasan for his part in the January 17 memo, which had stated that Berger’s supervision of the project was no longer necessary.  The warning explained that Hasan would be terminated if he engaged in any further misconduct or insubordination.  Thereafter, the Respondent terminated Hasan and later provided him with a letter stating that he had been terminated because of his conduct over the previous nine months, specifically his refusal to accept supervision and his confrontations with staff members.  The judge determined that the Respondent did not violate the Act when it warned and then discharged Hasan, because the January 17 memo was not protected activity.  Nonetheless, my colleagues in the majority have decided that the Respondent did in fact violate Section 8(a)(1) based on their finding that the January 17 memo was in fact protected, concerted activity that was “inextricably intertwined” with the January 29 memo.  According to my colleagues, the Respondent was motivated in its discharge of Hasan by its animus toward his protected activity relating to the memos and his earlier concerted conduct with Borgs.  I, however, would adopt the judge’s finding that the January 17 memo was not concerted, protected activity and that, therefore, the Respondent did not violate the Act when it discharged Hasan.

My colleagues in the majority find that, even if the sole purpose of the January 17 memo was to remove Berger as supervisor of the project, Hasan’s conduct in preparing and submitting the memo was protected because Berger’s conduct as a supervisor affected Hasan’s working conditions.  Additionally, they find that this January 17 memo was “inextricably intertwined” with the January 29 memo, which laid out Hasan’s and Borgs’s perceived problems with Berger’s supervision.  In this regard, my colleagues state that, because Loehrke and Berger had read both of the memos prior to their meeting with Hasan and their attempted meeting with Borgs on February 1, they “fully understood that the issues raised in the January 17 memo were not separate from the concerns about how they were being treated by their supervisor as set forth in the subsequent memo.”  Based on this finding, which is in direct contrast to the judge’s finding that the second memo was a mere “after-the-fact attempt at damage control,” my colleagues determine that the January 17 memo was a clear attempt to raise issues related to Hasan’s and Borgs’s employment conditions and that therefore the reprimand that Hasan received for his part in writing and submitting the memo violated Section 8(a)(1).  Additionally, according to my colleagues, Hasan’s discharge was violative of Section 8(a)(1) because the Respondent put Hasan “on the verge of termination” for taking part in the memo-writing, activity that my colleagues find to be protected, and then cited his conduct over the last nine months, during which time Hasan did engage in some protected, concerted activity, in its termination letter.  My colleagues assert that these two things demonstrate that the Respondent’s animus toward Hasan’s protected activity was the motivating factor behind his discharge.

Clearing away the smoke, the issues surrounding Hasan’s discharge are determined by whether his conduct relating to the January 17 memo was protected.100  The judge found that it was not, and my colleagues reject that determination.  Under established law, employees are free to engage in concerted activities for mutual aid or protection in the absence of a union or collective-bargaining activity;  however, concerted activity with the limited purpose of protesting the hiring, discharge, or continued employment of a supervisor101 or of “affect[ing] the ultimate direction and managerial polices of the business” is not protected.102  There is, of course, an exception to this rule, and it is that exception that my colleagues in the majority use to find that the January 17 memo was, in fact, protected activity.  This exception applies to concerted activity that protests the selection or termination of a supervisor who directly impacts on the employees’ working conditions.103  My colleagues in the majority find that “Berger’s supervisory duties had a significant impact on Hasan’s terms [and] conditions of employment” and that, therefore, Hasan’s part in the January 17 memo was protected activity.

I would find that Hasan’s conduct with regard to the January 17 memo was not protected, because that memo explicitly called for Berger’s removal as supervisor of the project and did not protest any actions that Berger had taken that affected Hasan’s terms and conditions of employment.  An examination of some of the cases that have found protected activity when employees have protested the employment of a supervisor demonstrate that the present case does not meet this exception.

  In Dreis & Krump Mfg. Co. v. NLRB,104 for example, the union brought a formal grievance on behalf of an employee, charging a supervisor with “negligence in overseeing safety and production.”105  During the grievance process, the employee distributed copies of the grievance and a statement about the matter to fellow employees.106  He was thereafter discharged.107  The Board found that the employer had violated the Act, and the Seventh Circuit upheld that determination.  In so doing, the court distinguished the situation in which an employee protest of a supervisor is based on animus toward that supervisor  and therefore is not protected.108  As the court explained, the employee in Dreis & Krump, through circulation of the grievance and statement, was warning fellow employees about “supervisory deficiencies which potentially affect on-the-job safety and performance” and was therefore furthering a purpose of mutual aid or protection.109  Thus, in Dreis & Krump, the employee activity focused on specific problems with the supervisor and articulated those problems within the protest materials themselves.

Similarly, in NLRB v. Oakes Machine Corp.,110 the Second Circuit upheld the Board’s determination that employee protests of a supervisor were protected and that the discharges that resulted violated the Act.  In that case, an employee sent a letter to his employer’s parent company, complaining about the conduct of the employer’s president and was terminated as a result.111  The court first noted that “[e]mployee action seeking to influence the identity of management hierarchy is normally unprotected activity,”112 but then went on to determine that, in the circumstances of that case, the letter-writing was protected.  The letter contained several paragraphs complaining of the company president’s “diversion of company resources and personnel away from potentially profitable company projects, in order to advance [his] own personal projects.”113  The court found a direct relation to terms and conditions of employment in this protest because “although the letter did not specifically state[ ] that [the president’s] diversion of personnel and resources to personal projects had reduced employees’ salaries, that inference was permissible, if indeed, not compelled.”114  This was so because it was known that employee raises and bonuses were tied to company profitability, that employees had not received an annual raise because the company had not been profitable, and that employees had blamed the time they were required to spend on the president’s personal projects for the unprofitable year.115  Thus, the letter to the parent company was clearly in protest of supervisor activities that affected employees’ terms and conditions of employment.

Finally, Caterpillar, Inc.,116 cited by my colleagues in the majority, provides yet another example of the required connection between the protest of a supervisor and the effect that that supervisor’s activities have on employees’ terms and conditions.  There, the Board initially found that the employee protest was not actually an attempt to remove the chief executive officer,117 but then went on to consider the effect that such a finding would have on its decision.118  In Caterpillar, the employees had displayed the slogan “Permanently Replace Fites,” Fites being the chief executive officer who had decided to replace permanently striking employees at other Caterpillar plants.119  The Board found that the decision permanently to replace employees, conduct that was clearly referenced in the employees’ chosen form of protest, “had an immediate and direct effect on the employees’ ‘lot as employees,’” thereby making their protest protected activity.120  Again, however, Caterpillar involved activity on the part of employees that clearly referenced the actions by management that were under protest and that affected the employees’ terms and conditions of employment.

In the instant case, the January 17 memo  referenced no conduct by Berger.  It merely stated that his supervision was no longer necessary.121  There is absolutely nothing in the memo indicating that Hasan and Borgs were protesting any conduct on the part of Berger that had any effect on their working conditions.  Thus, I would find that the January 17 memo was merely an attempt to remove Berger as their supervisor and was therefore unprotected by the Act.

My colleagues in the majority assert that the January 29 memo establishes that the January 17 memo was actually directed at supervisor conduct with a direct impact on working conditions, even if the January 17 memo itself did not directly cite such conduct.  In this regard, my colleagues are apparently at least impliedly rejecting the judge’s finding that the January 29 memo was merely an attempt at after-the-fact damage control and not a sincere expression of concern about Berger’s conduct as a supervisor.  As I would accept the finding of the judge, who was able to observe the witnesses at the hearing and reach a conclusion based on all of the evidence and testimony, I disagree with my colleagues that the January 29 memo can somehow “save” the January 17 memo.  As explained, the January 17 memo references absolutely no conduct on the part of Berger that would affect employee working conditions but rather merely calls for his removal as supervisor.  The fact that Hasan and Borgs, after learning that Berger and Loehrke were angered by the January 17 memo, then drafted a second memo, in which they listed alleged problems with Berger’s supervision, cannot mean that the initial memo is suddenly endowed with new meaning.  Indeed, it is more a tacit recognition of the unprotected nature of the January 17 memo and an after-the-fact attempt to cover the clear omission from the January 17 memo.122

It is true that, in assessing whether employee protests of supervisors are aimed at conduct affecting terms and condition, the Board should consider all of the surrounding circumstances.123  Here, however, the judge made a clear finding that the January 29 memo was a mere after-the-fact attempt to justify Borgs’s and Hasan’s earlier behavior.  There is no other evidence that Borgs and Hasan had raised these concerns about Berger prior to the January 17 memo. The January 29 memo, coming as it did after the initial employee conduct and apparently in response to employer reaction to that conduct, cannot alone bring the January 17 memo into the realm of protected activity.  Because the January 17 memo references absolutely no supervisor conduct having a direct impact on employee terms and conditions of employment and because there is no evidence of conduct on the part of Borgs and Hasan contemporaneous with that memo that would suggest that the memo itself was aimed at specific supervisor conduct with an impact on terms and conditions, I would find that it is unprotected as a mere attempt to remove a supervisor.  Therefore, I would find that Hasan’s discharge was lawful.

iii.

In summary, I would find that the Respondent employer has not violated the Act as a result of its discharge of Borgs or Hasan.  Under current law, a nonunionized employee has no right to a Weingarten-type representative at an investigatory interview with his or her employer.  I believe that this approach is correct.  My colleagues’ decision to return to the Materials Research approach and endow unrepresented employees with such a right is contrary to the NLRA, which does not required nonunionized employers to “deal with” unrecognized and uncertified employee representatives.  Additionally, even if this approach were cognizable under the Act, it does not result in a reasonable balance of the competing interests of labor and management.  Whereas a union representative in an investigatory interview can be of assistance to the individual employee, the employer, and the unit as a whole, a coworker-representative is unlikely to be of much assistance to anyone, and thus burdening nonunionized employers with a requirement to allow such representation or forego investigatory interviews does not strike a fair balance.  I therefore dissent from my colleagues’ finding that the Respondent’s discharge of Borgs violated the Act.

Similarly, I would find that the Respondent’s discharge of Hasan was not in violation of the Act.  His part in the January 17 memo was not protected activity because that memo did nothing more than call for the removal of a supervisor without citing a single incident of supervisory conduct that affected his terms or conditions of employment.  Such activity is unprotected.  The January 29 memo should not alter this finding as the judge specifically found that it was nothing more than an after-the-fact attempt at damage control.  I therefore dissent from my colleagues’ finding of a violation with regard to Hasan’s discharge as well.

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

                        National Labor Relations Board

APPENDIX

Notice To Employees

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice.

We will not coercively interrogate employees concerning their concerted protected activities.

We will not issue disciplinary warnings to employees for disclosing or discussing their wages with other employees.

We will not threaten employees with reprisals for disclosing or discussing their wages with other employees.

We will not maintain a rule prohibiting employees from disclosing or discussing their wages with other employees.

We will not issue disciplinary warnings to employees for engaging in protected concerted activities.

We will not discharge employees for engaging in protected concerted activities.

We will not in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act.

We will rescind our policy prohibiting employees from discussing their wages with other employees.

We will, within 14 days from the date of the Board’s 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.

We will make Arnis Borgs and Ashraful Hasan whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus interest.

We will, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful warnings and discharges of Arnis Borgs and Ashraful Hasan, and we will, within 3 days thereafter, notify each of them in writing that this has been done and that the warnings and discharges will not be used against them in any way.

Epilepsy Foundation of Northeast Ohio

Paul C. Lund, Esq., for the General Counsel.

 Cynthia Lowencamp, Esq., of Cleveland, Ohio, and Neil Myers, Esq., of Euclid, Ohio, for the Charging Parties.

 Steven Moss, Esq., and Morlee A. Rothchild, Esq., for the Respondent.

DECISION

Statement of the Case

Richard A. Scully, Administrative Law Judge. Upon charges filed on April 10, 1996,1 by Arnis Borgs and on May 13, 1996, by Ashraful Hasan, the Regional Director, Region 8, National Labor Relations Board, issued a consolidated complaint on November 14, 1996, alleging that Epilepsy Foundation of Northeast Ohio (the Respondent), had committed certain violations of Section 8(a)(1) of the National Labor Relations Act, as amended. The Respondent filed a timely answer denying that it had committed any violation of the Act.

A hearing was held in Cleveland, Ohio, on April 15 through 17, 1997, at which all parties were given a full opportunity to examine and cross-examine witnesses and to present other evidence and argument. Briefs submitted on behalf of the General Counsel and the Respondent have been given due consideration. Upon the entire record, and from my observation of the demeanor of the witnesses, l make the following

Findings of Fact

i. jurisdiction

At all times material, the Respondent was a not-for-profit corporation engaged in the prevention and control of epilepsy at its facility located in Cleveland, Ohio. Annually, in the course and conduct of its business operations, the Respondent receives funds and contributions in excess of $500,000 of which over $50,000 is received directly from points located outside the State of Ohio. The Respondent has admitted the foregoing facts but in its answer and at the hearing denied that it is subject to the Board’s jurisdiction because it is a nonprofit charitable social service organization. It did not discuss this issue in its brief and has offered no other reasons why it would not be subject to the Board’s jurisdiction. The Board has long held that the only basis for declining jurisdiction over a charitable organization is a finding that its activities do not have a sufficient impact on interstate commerce to warrant the exercise of its jurisdiction. St. Aloysius Home, 224 NLRB 1344, 1345 (1976). Here, the Respondent’s annual revenues far exceed the discretionary jurisdictional standards applicable to health care institutions and social service organizations. See Hispanic Federation for Social Development, 284 NLRB 500 (1987). Moreover, as the Board has pointed out, employees of a nonprofit charitable organization have the same Section 7 rights to engage in protected concerted activities as do employees of commercial enterprises and are entitled to the remedial measures which may be required to remedy unlawful interference with such rights. United Services for the Handicapped, 251 NLRB 823, 825 (1980). Accordingly, l find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act and is subject to the jurisdiction of the Board.

ii. the alleged unfair labor practices

A. Background

The Respondent provides services to persons affected by epilepsy throughout Northeast Ohio. It is an affiliate of the Epilepsy Foundation of America (EFA) and participates in EFA sponsored programs. In 1993, the National Institute of Disability and Rehabilitation Research (NIDRR) awarded EFA a grant to conduct a research project involving school-to-work transition for teenagers with epilepsy. The Respondent submitted a proposal and was selected by EFA to conduct a 3-year demonstration project in which teenagers with epilepsy were recruited to participate in a vocational program, involving classroom and work experience with employers in the community, to prepare them for the transition from school to work. The Respondent was responsible for hiring, supervising and evaluating the staff needed to conduct the NIDRR project. The on-site immediate supervisor of the project, which commenced in October 1993, was Julie Johnson until she left in March 1994 and was replaced by the Respondent’s Director of Vocational Services Rick Berger. Christine Loehrke, the Respondent’s current Executive Director has had responsibility for overseeing the project from the outset. The project was also to be monitored by Jim Troxell, an EFA representative, and was to receive data processing and analytical services from Dr. Bob Fraser, a representative of the University of Washington. The project included a full-time position for a Transition Specialist and Dr. Ashraful Hasan was hired by the Respondent to fill that position. Arnis Borgs was hired by the Respondent in June 1994 as a part time job coach and later became a full time Employment Specialist, a position that involved placing clients with epilepsy in jobs and assisting them in performing the jobs. In early 1995, he began working on the NIDRR project and his time was divided equally between his regular placement activities and duties related to the project.

B. Allegations Concerning Wage Information

The complaint alleges that on or about December 28, 1995, Arnis Borgs was unlawfully interrogated and threatened with unspecified reprisals for discussing employees’ wages; that on that date the Respondent promulgated a rule unlawfully prohibiting employees from discussing wages; that, on January 3, 1996, he was given a written reprimand for obtaining and disclosing salary information; and that, on or about January 9, he was given another reprimand for insubordination because he had failed to return the warning notice he was previously given.

Borgs testified that in the late fall of 1995 he had discussions with other employees, including Tom Darkness and John Novak, concerning their wages. His annual evaluation was approaching and he asked other employees how much they were making and how raises were calculated. Some employees shared wage information with him and some did not. On December 28, he was called to a meeting with Berger and Loehrke. Just prior to that meeting, Berger told Borgs that Loehrke was “really angry” at Borgs because of his involvement in getting the employees’ mileage reimbursement increased, discussed below, but also said that if Borgs repeated it to anyone he would deny having said so. At the meeting, Loehrke asked if Borgs had been discussing salaries with other employees, why he did so, and where he had gotten such information. Borgs responded that he was curious as to what other employees were making and that he had gotten the information directly from the employees. Loehrke told him that it was against the Respondent’s policy to disclose salary information and Borgs said that he had not disclosed it but merely discussed it in casual conversations. Berger accused him of having a list of salaries that he was showing around, which Borgs denied. They continued to ask him why he wanted such information and where he had gotten it. Near the end of the meeting, Berger told him that he was being given “a warning” not to discuss salaries again. Loehrke said there was a policy against salary disclosure, that he should not be getting or disclosing such information, and that if he did it again he would be reprimanded. On January 3, 1996, Berger gave him a written warning notice for unauthorized access to and dissemination of confidential salary information. Berger told him he could sign or not sign the notice as he chose, but that it had to be resumed. Borgs took the notice and, when Berger asked about it, he said he wanted to discuss it with someone outside the agency and would return it on January 10. On that date, when Borgs resumed the first warning notice to Berger with his comments on it, he was given another warning notice. That notice reiterated that he was being warned for acquiring and sharing confidential salary information as well as for being “insubordinate” and having “confiscated” agency property by reason of his failure to return the first warning notice.

Christine Loehrke testified that salaries of the Respondent’s staff are confidential and that only  she, the Director of Administration Jim Wilson, and the bookkeeper have access to them. Payroll information is kept in a locked file cabinet to which only the same three people have access. She testified that the Respondent has an unwritten policy that unauthorized access to or dissemination of confidential information is unacceptable. In late November 1995, she was informed by Berger that Borgs had shared with employee Jeff Schoenberger a list of employee salaries and was provided with a memo, dated November 28, 1995, from Schoenberger about the incident. Berger also told her about a conversation he allegedly had with Borgs and Hasan in which they indicated they had information concerning the salaries of several staff members, including Berger, Wilson and Carol Doubler, a supervisor in the employment department. Berger asked how they acquired the information and they said that “they had their ways.” After receiving this information from Berger, she asked the people he had mentioned if they had voluntarily disclosed salary information to Borgs and was told that they had not. On December 28, 1995, she and Berger met with Borgs. She told Borgs that she had learned that he had a list of salaries. Borgs denied having a list and said that what salary information he had was given to him voluntarily. She informed him of the Respondent’s policy conceding confidential information, that he was being given a verbal warning and that any similar acts would be dealt with “in a harsher way.” On the following day she prepared a warning notice and gave it to Berger to give to Borgs. After Berger told her that Borgs had taken the warning notice to show it to someone and had not resumed it, he was given a written notice that it had to be resumed by January 9, 1996. When Borgs did not return the warning notice on January 9, after being told to do so several times, she prepared another warning for insubordination.

Analysis and Conclusions

The Board has held that, in the absence of a business justification for it, a rule requiring that employee salaries be kept confidential and not be disclosed to other employees constitutes a clear restraint on the employees’ Section 7 right to engage in concerted activities for mutual aid and protection concerning an undeniably significant term of employment. E.g., Leather Center, Inc., 312 NLRB 521, 527 (1992); Heck’s, Inc., 293 NLRB 1111, 1119 (1989). The Respondent contends that Borgs was not interrogated about or disciplined for discussing salary information with other employees who voluntarily disclosed such information, but for the unauthorized acquisition and disclosure of salary information concerning supervisory employees who had not disclosed it to him.

The warning notice, dated December 28, 1995, prepared by Loehrke, states: “He [Borgs] was told that agency policy holds salary info. confidential and that unauthorized access to this info., and/or unauthorized release of this info., is unacceptable.” A similar statement appears in the warning notice, dated January 9, 1996.2 There is no evidence that this “unwritten policy” had actually been promulgated previously or that the Respondent had any business justification for such a policy. The finding of a violation for prohibiting disclosure of salary information “is not premised on mandatory phrasing, subjective impact, or even evidence of enforcement, but rather on the reasonable tendency of such a prohibition to coerce employees in the exercise of fundamental rights protected by the Act.” Radisson Plaza Minneapolis, 307 NLRB 94 (1992). The clear import of the Respondent’s policy is that obtaining or disclosing any salary information is prohibited, not just that which concerns supervisory personnel or is contained in confidential files, and that even voluntary disclosure of an employee’s own salary would violate the policy. If the Respondent intended the prohibition to apply only to accessing salary information concerning supervisors or that which is physically contained in confidential files, it could have said so. Its blanket prohibition against obtaining or disclosing any salary information, in the absence of any business justification for such a rule, was overly broad and could reasonably be expected to stifle any discussion of salary information. See Service Merchandise Co., 299 NLRB 1125, 1126 (1990). I find that the Respondent’s promulgation of this rule on December 28, 1995 violated Section 8(a)(1).

I also find that the interrogation of Borgs and the warnings issued to him for discussing salary information were unlawful. As noted, Section 7 protects employees’ rights to discuss salary information. On December 28, 1995, Borgs was called in to a meeting with Berger, one of his supervisors, and Loehrke, the Respondent’s highest ranking official, and quizzed about protected activity, viz., discussing salary information. Immediately prior to the meeting, Berger informed him that Loehrke was “really angry” over Borgs’ having engaged in other, unrelated protected activity, his campaign to get the mileage reimbursement increased. At the meeting, he was questioned about whether he had discussed salary information with other employees, why he did so, and where he had gotten such information. Borgs admitted discussing salary information with other employees who had disclosed such information to him, but denied the accusation that he had a list of salaries. He was told that he had violated a policy against obtaining and disclosing salary information, that he was being given a warning for the violation, and that any similar activity would  be dealt with in a harsher manner. In evaluating whether an interrogation concerning an employee’s protected activity was coercive, all of the surrounding circumstances must be considered. Rossmore House, 269 NLRB 1176, 1177 (1985).  I find that this interrogation of Borgs, which concerned an accusation that he had violated an unlawful policy against discussing salary information and was accompanied by a warning and threat of additional, harsher disciplinary action, had a reasonable tendency to restrain, coerce, and interfere with protected rights and violated Section 8(a)(1). Super One Foods, 294 NLRB 462, 464 (1989).

The clear language in the disciplinary warning notices issued to Borgs establishes that he was being disciplined for violating the Respondent’s overly broad policy prohibiting obtaining and disclosing salary information. Since the policy was unlawful, disciplinary action based on a violation of that policy would, likewise, violate the Act. Elston Electronics Corp., 292 NLRB 510, 511 (1989). However, the Respondent contends that the real reason for the warnings to Borgs was that it had a reasonable belief that he had improperly obtained confidential salary information concerning supervisory employees who had not voluntarily shared such information with him. There no credible evidence to establish this. There is substantial evidence to the contrary, not the least of which is the failure to mention such a reason in either of the warning notices. Moreover, the evidence shows that, while Loehrke made the decision to take disciplinary action against Borgs, she had little, if any, personal knowledge concerning the alleged salary disclosures by Borgs and her actions were based entirely on information purportedly provided by Berger. Berger was not called as a witness by the Respondent and its failure to do so has not been explained. There is no evidence that Berger was unavailable at the time of the hearing or that he was not favorably disposed toward the Respondent. This creates the inference, which I draw, that Berger’s testimony would not have supported the Respondent’s position. See International Business Machines, 285 NLRB 1122, 1123 (1987). I also find that Loehrke’s testimony about this matter cannot be credited. She stated that she first learned about  the matter in November 1995 from Berger, who told her that Borgs had shown a list of salaries to Schoenberger and that in another incident Borgs and Hasan had told Berger that they had information about the salaries of supervisors. However, a memo, dated November 28, 1995, written by Berger, refers only to Schoenberger’s report about Borgs’ showing him a list of salaries and makes no mention of the alleged incident involving Borgs and Hasan. l find the fact that there is no mention of that incident in the memo, that no action was taken against Hasan (who credibly denied the incident ever happened) with respect to having obtained salary information, and that Berger did not testify establishes that the incident never happened. The record also contains a memo from Schoenberger to Berger in which he reported that Borgs showed him a list of salaries, complained about an unfair agency pay scale, and said that raises were not given to employees who deserved them but just to friends of Loehrke. The memo indicates that this had occurred on March 31, 1995, nearly 8 months before. That memo also contains a handwritten note by Loehrke, dated January 29, 1996, in which she states that, in talking with Schoenberger, she had “discovered” that the list was “verbal” and there was no written document. This suggests that she had not talked to Schoenberger about the matter before disciplining Borgs as she had implied during her testimony.

Finally, there is no credible evidence to support Loehrke’s alleged belief that Borgs had improperly obtained confidential information concerning any supervisor’s salary. Borgs has consistently maintained, when questioned by Loehrke and in credible testimony at the hearing, that whatever salary information he had was voluntarily disclosed to him by other employees. As discussed above, I do not credit Loehrke’s testimony that Berger told her about Borgs and Hasan having information concerning the salaries of Berger, Wilson and Doubler. The only other evidence is Berger’s memo to Loehrke about what Schoenberger had allegedly told him. That memo states: “I asked Jeff [Schoenberger] if I was on the list. I was, and the amount was not close.” It follows that even if what Schoenberger said was true, since the amount was “not close” to being correct, there was no basis to conclude that Borgs had obtained such information from the Respondent’s confidential files. I find that the Respondent issued the warnings to Borgs because he had violated its unlawful policy prohibiting the discussion of wages by employees and not because he had improperly obtained or disclosed confidential information concerning the salaries of supervisors. Since these warnings violated Section 8(a)(1), the additional basis for the second warning, Borgs’ alleged insubordination and confiscation of agency property by not promptly resuming the first warning notice, was also unlawful.

C. Discharges of Borgs and Hasan

The complaint alleges that the Respondent unlawfully discharged Arnis Borgs and that it unlawfully reprimanded and discharged Ashrafal Hasan because they had engaged in concerted activities protected by the Act.

1. Alleged Concerted Activity

The evidence shows that during 1995, Borgs had been engaged in trying to get the Respondent to increase the amount it reimbursed employees for mileage when they used their personal vehicles for work. The Respondent’s employee handbook provides that employees who are required to use their personal automobiles for business will be reimbursed at “the IRS approved rate for mileage.” The IRS approved rate was 29 cents and employees were only receiving 25 cents per mile. He credibly testified without contradiction that, beginning in January and February, he had discussed the reimbursement issue with other employees in the employment department where he worked and later with employees in the social services department. Several indicated they approved of his raising the issue with the Employer. He described one such conversation, in which employee John Novak said that it would be great if Borgs got an increase for everyone, but that he did not want to be involved because he feared repercussions. In one of his communications to Loehrke about the issue, Borgs stated that at least five other employees had expressed their concern about it.

Borgs testified that he raised the reimbursement issue with the Respondent’s bookkeeper and that on June 12, 1995, the bookkeeper issued a memorandum stating that from then on mileage would be reimbursed at the rate of 29 cents per mile. A short time later that same day, Berger read the memo and went around and told all employees that the memo had been rescinded. In July, Borgs went to Loehrke to ask about increasing the mileage reimbursement and followed up with a memo, dated September 30. He subsequently prepared and submitted a bill, dated November 15, 1995, for $135.60, representing the difference between the amount he was paid for mileage during 1995 and what he claimed was due him under the 29 cent per mile rate. Loehrke responded with a note, dated November 20, stating that the 25 cent per mile rate would be in effect until further notice. Borgs sent her another memo, dated November 22, pointing out that the handbook called for reimbursement at the IRS approved rate and asking for an explanation as to why the policy in the handbook was not being followed. He sent another memo, dated December 11, 1995, to Loehrke asking for clarification of the reimbursement policy. Loehrke resumed the memo with a handwritten note on it. saying that she had already discussed the matter with him “2 times.” On December 19, 1995, Loehrke issued a memo stating that mileage reimbursement would be made at 29 cents per mile, retroactive to January 1, 1995.

Between August and December 1995, Borgs and Hasan engaged in a “Brown Bag Lunch” program in which employees got together about a half dozen times during their lunch hours to discuss matters of mutual concern. Borgs testified that around the time the program began both Loehrke and Berger indicated that they disapproved of the meetings and that Berger told one of the secretaries that she could not attend. Hasan testified that Berger was critical of the program and questioned why the meetings were being held which prompted him to invite Berger to attend. In November 1995, Borgs and Hasan started an “Ethics Committee” which held two meetings in which employees were given the opportunity to address problems concerning employee relations and delivery of services to clients. Hasan testified that Berger told him that Loehrke questioned the purpose of the committee and felt that its title implied that “there is something unethical going on.” Minutes of the meetings were posted in the office. They also distributed a questionnaire to the employees asking for their opinions about work related matters, including, “leadership vision” and “supervisory integrity.”

There is evidence that one of the clients involved in the NIDRR project had multiple disabilities requiring the use of an interpreter and that Hasan and Borgs had hired an interpreter without following the agency’s subcontracting procedure. Hasan testified that Berger refused to pay the invoices he submitted for the  interpreter’s services and he had to pay her himself to prevent the disruption of services to the client. Carol Doubler testified that, at the direction of Berger, she contacted the interpreter and requested that she appear for an interview and to complete the required paperwork. The interpreter told her that she was upset about statements that Hasan and Borgs had made that indicated she was being used in a “political battle” they were fighting at the agency and that she did not wish to have any further contact with either of them. Doubler told Hasan what the interpreter had said, but a week later the interpreter called to say that Hasan had contacted her again and that she was extremely upset over it. The record contains a memo Berger wrote, dated June 7, 1995, about the incident which states that Hasan and Borgs were given verbal warnings for their actions. The memo was apparently placed in their personnel files. Hasan and Borgs both testified that they had discussed the interpreter incident with Berger and that after they clarified what had happened, Berger told them that he had misunderstood the facts concerning the incident and that nothing derogatory or negative would be put in their personnel files. Hasan subsequently reviewed his personnel file and discovered the warning memo Berger had placed there. Thereafter, he wrote a memo to Berger, dated, October 5, 1995, in which he referred to their previous conversation, complained about Berger’s placing the warnings in their files and demanded an explanation. Hasan sent copies of this memo to both Loehrke and Borgs. Berger responded with a memo, dated October 13, 1995, which criticized the “insubordinate tone” of Hasan’s memo and accused him of undermining Berger’s supervision of Borgs by sending a copy of it to him. Loehrke testified that she considered Hasan’s memo threatening, hostile and disrespectful, that she felt Hasan “had crossed the line,” that “strong action had to be taken,” and that she assisted Berger in preparing his response. She said that she considered Hasan’s memo insubordinate and that by sending a copy to Borgs, who had no need to be involved, it might also encourage him to be insubordinate. Loehrke had no personal knowledge of the interpreter incident and did not talk to Hasan about his memo. Berger did not testify.

Consequently, I find no reason to doubt the uncontradicted testimony of Hasan and Borgs that Berger told them there would be nothing adverse placed in their files as a result of the incident. When Hasan discovered that Berger had, in fact, issued warnings to both him and Borgs, based on that incident, his efforts to question and dispute the warnings constituted concerted activity on his part. There is nothing in the memo that is so outrageous, egregious or disruptive as to lose the protection of the Act. E.g., Martin Marietta Corp., 293 NLRB 719, 725 (1989); YMCA of Pikes Peak Region, 291 NLRB 998 (1988).

 2. Events Leading to the Discharges

On January 17, 1996,3 Hasan and Borgs prepared and submitted a memo to Berger concerning the NIDRR project which stated:

Mr. Jim Troxell and Dr. Bob Fraser have continued to provide supervisory input pertaining to service delivery and the research component of the study. During the past several months, Ms. Christine Loehrke has also provided input and assistance to the NIDRR School-to Work Project.

As mentioned during earlier discussions (albeit brief) with you, both Dr. Ashraful Hasan and Mr. Arnis Borgs reiterate that your supervision of the program operations performed by them is not required.

Your input to the NIDRR project in the past is appreciated. At this stage, the major area which has to be addressed -deals with outreach. Only support staff assistance is needed in this regard.

A copy of the memo was sent to Loehrke who was away from the office at the time.

Hasan and Borgs testified that they had encountered problems with Berger failing to carry out tasks relating to out reach for the project. The memo was intended as a needs assessment for the project, which Hasan described as “top heavy” with supervision while what was really needed was more secretarial help. When they reamed that both Berger and Loehrke were very unhappy about the memo, they submitted another eight-page memo, dated January 29, with the stated intention of elaborating upon the reasons underlying the previous memo, detailing the problems they felt were undermining and endangering the project, and suggesting solutions.

On February 1, Berger came to Hasan and Borgs and told them that Loehrke wanted each of them to meet, individually, with her and Berger. Hasan informed Berger that they were involved in a meeting and could not meet with them at that moment. A short time later, Loehrke came in and informed them that they had to meet. Loehrke told Borgs that she needed him to meet with her and Berger. Borgs testified that he declined because he felt intimidated after the meeting he had alone with the two of them about salary information. Borgs said that he would meet with Loehrke alone, but she said that was not an option and that Berger had to be present. Borgs asked if Hasan could also be present and Loehrke said that also was not an option. When Borgs reiterated his refusal to meet with the two of them by himself, Loehrke told him to go home for the rest of the day and report back at 9 a.m. on the following morning. Borgs was told to surrender his key to the office and was escorted out of the building. When he resumed the next day, he met with Loehrke and Wilson in a conference room. Loehrke told him that his refusal to meet the previous day constituted gross insubordination and that he was terminated. He was given a termination letter, signed by Loehrke, stating that over the last several weeks the agency had brought to his attention, “several concerns about [his] conduct and performance.” This included failing to build constructive work relationships with management personnel and resistance to accepting performance goals. The letter also refers to his involvement in the January 17 memo, which is said to indicate his unwillingness to accept supervision of his work, and his refusal to meet with Loehrke and Berger on February 1, to discuss these issues, which is said to be an unacceptable challenge to her authority and to constitute gross insubordination.

Hasan eventually agreed to meet with Loehrke and Berger on February 1. Hasan testified that during the meeting, which lasted about 20 minutes, Loehrke expressed her annoyance with the January 29 memo and said she would not tolerate such memos. Hasan told them that both memos were needs assessments meant to identify difficulties in the project and how to implement ways to revitalize it. After the meeting ended, Hasan received a warning notice in his mailbox, stating that the memo of January 17, he had co-signed, constituted gross insubordination and any further acts of misconduct or insubordination would result in immediate discharge.

Loehrke testified that Hasan also initially refused to meet with her and Berger and that he agreed only after he refused her order to leave the building and she had threatened to have him removed by the police. She said that the memo of January 17 indicated that Hasan and Borgs felt they did not need supervision by Berger and that the purpose of the meeting was to tell Hasan that she considered the content of the memo “inappropriate,” as was the method in which it was delivered to Berger, while she was away from the office. At the meeting, Hasan told her that the memo was a needs assessment. She told him that needs assessments were neccessary but that she had never seen a needs assessment done in such a manner, that she did not see the memo as a needs assessment but as a dismissal of Berger from his supervisory duties over the project which constituted insubordination, and that she expected him to work with Berger as his supervisor to complete the project. She attempted to give him a written warning notice for insubordination, but he refused to take it or to sign it. She read the notice to him and put a copy in his mailbox. Loehrke testified that she did not discuss the January 29 memo with Hasan at the February 1 meeting because she considered it a separate issue from the January 19 memo, which she felt warranted strong disciplinary action. However, she and the director of administration met with Hasan on February 2 for about 2 hours in order to go over each of the concerns and accusations expressed in the January 29 memo.

On March 25, Hasan was called to Loehrke’s office where he was told that he was being terminated. Hasan testified that he was given no reason for his termination at that time. On March 29, when he returned to pick up his belongings, he was given a letter signed by Loehrke stating that he was terminated for his conduct over the previous nine months, including, refusal to accept supervision on the NIDRR project and various confrontations with staff members. Loehrke testified that Hasan was terminated because he refused to sign a statement of personal project objectives given him by Berger, that his refusal was done “willingly” and “defiantly,” that it constituted gross insubordination and subjected him to discharge. The Respondent’s brief confirms that the reason Hasan was terminated was his refusal to sign the performance objectives.

Analysis and Conclusions

The General Counsel contends that Hasan and Borgs were discharged in retaliation for their having engaged in concerted activity protected by the Act. The Respondent contends that their actions in connection with the January 17 memo to Berger did not constitute protected activity and the other instances of concerted activity on their part had nothing to do with their terminations.

In cases where an employer’s motivation for a personnel action is in issue, it must be analyzed in accordance with the test outlined by the Board in Wright Line, 251 NLRB 1083 (1980) enfd. 662 F. 2d 800 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). Under Wright Line, the General Counsel must persuade the Board that animus toward protected activity on the part of the employee was a substantial or motivating factor in the employer’s decision. Once that has been done, the burden shifts to the employer to demonstrate that it would have taken the same action even in the absence of protected activity on the employee’s part. Manno Electric, 321 NLRB 278, 280 at fn. 12 (1996). The General Counsel’s initial burden is met by proof of protected activity on the part of the employee, employer knowledge of that activity and employer animus toward it. W.R. Case & Sons Cutlery Co., 307 NLRB 1457, 1463 (1992).

a. Arnis Borgs

In the case of Borgs, l find that his efforts throughout 1995 to obtain increased mileage reimbursement for agency employees constituted protected concerted activity in that they were “engaged in with or on the authority of other employees, and not solely by or on behalf of the employee himself.” See Meyers Industries, 281 NLRB 882, 885 (1986). His uncontradicted testimony that he told Loehrke that he had discussed the matter with at least five other employees establishes that the Respondent had at least constructive knowledge of the concerted nature of those activities. See Nicola’s, 299 NLRB 860, 863 (1990). Borgs’ uncontradicted testimony that Berger told him that Loehrke was “really angry” about his raising the reimbursement question establishes the Respondent’s animus toward his activity. I have also found that Borgs was unlawfully disciplined for engaging in the protected activity of discussing employee salaries with another employee. Neither of these matters was so remote in time from his discharge as to preclude inferring a causal connection between those activities and the discharge. Consequently, I find that there is evidence sufficient to support the inference that Borgs was discharged in retaliation for his having engaged in those activities. I also find that the Respondent has established that it would have discharged Borgs even in the absence of those protected activities on his part.

As is discussed below, I find that the memo that Borgs and Hasan sent to Berger on January 17 did not constitute activity protected by the Act; therefore, disciplinary action arising as a direct or indirect result thereof did not violate the Act. An employer has the right to maintain order and to control its workplace and to discipline its employees for misconduct. Postal Service, 268 NLRB 274,275 (1983). Loehrke credibly testified that she wanted Borgs to meet with her in Berger’s presence in order to make it clear to him that he had to work under Berger’s supervision on the NIDRR project and to give him a written warning for his involvement in the January 17 memo. When Borgs refused to meet with her, she considered his action to be gross insubordination which threatened to undermine her authority as executive director of the agency. I find that Borgs’ persistent refusal to comply with Loehrke’s direct order to meet constituted insubordination and that the Respondent did not violate the Act by discharging him for this misconduct. Cf. Carolina Freight Carriers Corp., 295 NLRB 1080 at fn. 1 (1989).

The General Counsel also contends that Borgs’ discharge was unlawful because he was denied the right to be represented by a fellow employee, Hasan, at an investigatory interview he had reason to believe could result in disciplinary action against him. See NLRB v. Weingarten, Inc., 420 U.S. 251 (1975). I find the evidence establishes that the meeting that Borgs refused to attend with Loehrke and Berger was intended to be an investigatory interview; that he had reason to believe the interview could result in disciplinary action; that he made a timely request that Hasan be allowed to accompany him to the interview, which was denied; and that he was discharged because of his refusal to attend the interview. However, current Board law is clear that Weingarten rights to representation in investigatory interviews are limited to “employees in unionized workplaces who request the presence of a union representative.” E. I. DuPont & Co., 289 NLRB 627, 631 (1988). The General Counsel recognizes this but seeks to have the Board reconsider the matter. That request must be taken up with the Board. It is the duty of an administrative law judge to apply established Board precedent which the Board or the Supreme Court has not reversed. E.g., Herbert Insulation Corp., 312 NLRB 602, 608 (1993); Iowa Beef Packers, Inc., 144 NLRB 615, 616 (1965). I find that the Respondent did not violate Section 8(a)(1) by discharging Borgs for refusing to attend an investigatory interview on February 1, after his request that Hasan be allowed to accompany him at that interview was denied.

 b. Ashraful Hasan

In the case of Hasan, I find the evidence fails to support an inference that the Respondent harbored animus toward Hasan based on protected activity on his part to the extent that it would violate the law in order to put a stop to such activity. See Raysel-IDE, Inc., 284 NLRB 879, 880 (1987). I find no evidence to support the General Counsel’s contention that Loehrke had “a hostile, almost paranoid attitude, toward employees who engage in concerted activities, or which she perceives as concerted.” Although there was uncontradicted testimony that Berger was critical, at least initially, of the “Brown Bag Lunch” program Hasan and Borgs started, Loehrke credibly testified that she supported the idea of holding the lunches and there is no evidence that she interfered with the program or took any adverse action against any participant. Her testimony that she was a little concerned about the title of the “Ethics Committee” they proposed because it implied there was something unethical going on, without more, does not establish animus, particularly, where there is no evidence that she did anything to discourage or prevent the formation of such a committee or took any adverse action against the participants. Moreover, Hasan’s involvement in these activities and the flap over the comments placed in his personnel file in connection with the interpreter matter were remote in time and unrelated to the events that led to his discharge. See D & W Food Centers, 305 NLRB 553 (1991).

The main thrust of the General Counsel’s case with respect to Hasan is that the Respondent retaliated against him because of his involvement in the January 17 memo to Berger, which is asserted to have constituted protected activity on his and Borgs’ parts. Although both Hasan and Borgs have attempted to portray their January 17 memo to Berger as a “needs assessment,” this characterization and their memo of January 29 appear to be after-the-fact attempts at damage control. There is nothing in the January 17 memo which details any problems with the NIDRR project or attributes them to supervisory shortcomings on the part of Berger. It does not propose any solutions or request that Loehrke or the Respondent take appropriate remedial action and it does not seek to enlist the support of other employees for their mutual aid or protection. Unlike the leaflets distributed to fellow employees in Dreis & Krump Manufacturing, Inc.,4 this memo does not purport to protest the quality of Berger’s supervision as it relates their or other employees’ working conditions and unlike the complaints by employees in Fair Mercantile Co.,5 the memo is not an attempt to discuss problems related to Berger’s supervision of them with higher management. It simply informs Berger that his supervision of Hasan and Borgs “is not required.” The clear import of the memo is that they were dismissing him as their supervisor and from involvement in the NIDRR project. If what they wanted to do was to raise concerns about the project or the quality of Berger’s supervision, they could have said so. This was not a situation like that in NLRB v. Washington Aluminum Co.,6 in which employees who were not particularly sophisticated or articulate “had to speak for themselves as best they could.” 370 U.S. at 14. Borgs was a college graduate and Hasan has a doctorate. It must be assumed that they knew what they were doing and crafted the memo to accomplish their goal. It must also be assumed that, once the memo was issued, neither Hasan nor Borgs considered himself subject to Berger’s supervision. Since Loehrke was not directly involved in the project after September 1994, and in any event was out of town when the memo was issued, it in effect purported to remove the Respondent from any supervisory role over the NIDRR project. Not surprisingly, Loehrke interpreted the memo as a dismissal of Berger from the project and she considered it grossly insubordinate. The evidence also shows that when Loehrke received the memo of January 29, in which Borgs and Hasan actually detailed what they considered to be problems with the project and proposed some solutions, she promptly met with Hasan to discuss those matters and took no adverse action against him. l find that the actions of Borgs and Hasan in writing and issuing the January 17 memo were concerted but were not protected under the Act. Accordingly, the Respondent did not violate the Act by issuing a disciplinary warning to Hasan for insubordination for his part in the purported dismissal of Berger from the NIDRR project. I also find that the Respondent’s actions in response to the memo were not motivated by animus toward Hasan for engaging in protected activity, but were prompted by his insubordinate conduct.

There is evidence that Hasan had been involved in a number of incidents having nothing to do with protected activity, which Loehrke considered insubordinate and/or disruptive; including, the substance of the matter involving the interpreter (as opposed to Hasan’s complaint over the memo placed in his personnel file), confrontations over his demands for preferential treatment in obtaining clerical assistance and an incident in which his insensitive behavior adversely impacted the parents of an agency client. It may well be that she was looking for a reason to terminate him and that she seized on his refusal to sign the statement of project objectives to do so. In the absence of evidence sufficient to support an inference that animus toward protected activity on his part was a motivating factor in his discharge, her reason is irrelevant. It is well recognized that an employer is free to run its business as it pleases and can discharge an employee for a good reason, a bad reason, or no reason, so long as it is not for an unlawful reason. See Wright Line, supra at 1084. Having found there was no nexus between Hasan’s discharge and protected activity on his part, I shall recommend that this allegation be dismissed.

Conclusions of Law

1. The Respondent, Epilepsy Foundation of Northeast Ohio, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

2. The Respondent violated Section 8(a)(1) of the Act by coercively interrogating, issuing disciplinary warnings to and threatening Arnis Borgs with unspecified reprisals for discussing wage information and by promulgating a rule prohibiting employees from discussing such information with other employees.

3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act.

4. The Respondent did not engage in the unfair labor practices alleged in the consolidated complaint not specifically found herein.

Remedy

Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act.

On the foregoing findings of fact and conclusions of law and on the entire record, I issue the following recommended7

ORDER

The Respondent, Epilepsy Foundation of Northeast 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.

(c) Threatening employees with reprisals 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) 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, remove from its files any reference to the unlawful warnings issued to Arnis Borgs and notify him in writing that this has been done and that the warnings will not be used against him in any way.

(c) Within 14 days after service by the Region, post at its facility in Cleveland, Ohio, copies of the attached notice marked “Appendix.”8 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 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 April 10, 1996.

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

it is further ordered that the complaint is dismissed insofar as it alleges violations of the Act not specifically found herein.

Dated, Washington, D.C. January 2, 1998

APPENDIX

Notice To Employees

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

We will not coercively question our employees about their concerted protected activities.

We will not issue warnings to and/or threaten our employees with reprisals for discussing their wages with other employees.

We will not maintain or enforce a policy prohibiting our employees from discussing their wages with other employees.

We will not in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed by Section 7 of the Act.

We will rescind the policy prohibiting our employees from discussing their wages with other employees.

We will, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful warnings issued to Arnis Borgs and we will, within 3 days thereafter, notify him in writing that this has been done and that the warnings will not be used against him in any way.

epilepsy foundation of northeast ohio