Electrical Workers Local 236

National Labor Relations Board - Board Decisions

Aug 21, 2003

339 N.L.R.B. 1199 (N.L.R.B. 2003)

ELECTRICAL WORKERS LOCAL 236 1199
International Brotherhood of Electrical Workers,
Local 236, AFL–CIO and Frederick M. Nirsber-
ger. Case 3–CA–23141
August 21, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS WALSH
AND ACOSTA
On January 2, 2002, Administrative Law Judge Joel P.
Biblowitz issued the attached decision. In his decision,
the judge concluded that, contrary to the complaint, em-
ployee Frederick Nirsberger forfeited his right to co-
worker representation under Epilepsy Foundation of
Northeast Ohio1 by insisting on a representative who was
unavailable to be present during the investigatory inter-
view. The General Counsel filed exceptions to the
judge’s decision, and the Respondent filed cross-
exceptions. Both parties filed supporting briefs.2
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,3 and conclusions and
adopt the recommended Order.
I. FACTS
Since its formation in February 1999, Respondent In-
ternational Brotherhood of Electrical Workers, Local 236
has employed Fredrick Nirsberger as an assistant busi-
ness manager. In September 2000, after a heated election
contest, Tim Paley was elected the Respondent’s busi-
ness manager with full authority over all personnel mat-
ters. Although Nirsberger supported Paley’s opponent in

1 331 NLRB 676 (2000), enfd. in relevant part 268 F.3d 1095 (D.C.
Cir. 2001).
2 On March 6, 2003, the Board granted the joint request of LPA,
Inc., The Equal Employment Advisory Council, Associated Builders
and Contractors, the Chamber of Commerce of the United States, the
Society for Human Resource Management, the International Mass
Retail Association, and the National Association of Manufactures to
file an amicus brief and accepted the brief that accompanied that re-
quest.
On March 19, 2003, the Board granted the request of the Council on
Labor Law Equity (COLLE) to file an amicus brief and accepted the
brief that accompanied that request.
On April 4, 2003, Wal-Mart Stores, Inc., filed a response in support
of briefs amici curiae and a request for oral argument. The request for
oral argument is denied as the record, exceptions, and briefs adequately
present the issues and the positions of the parties.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
See Standard Dry Wall Products, 91 NLRB 544, 544–545 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
the election, Paley nevertheless decided to retain Nirs-
berger in his position after the election. In the months
following Nirsberger’s retention, however, Paley and
Nirsberger clashed over a variety of matters, including
Nirsberger’s attendance record, his ability to follow work
rules, and his perceived general reluctance to be a “team
player.”
On December 29, 2000, Paley summoned Nirsberger
and fellow Assistant Business Manager Don Rahm to a
meeting to discuss Nirsberger’s absenteeism and other
performance issues. When Nirsberger and Rahm arrived,
Paley began the meeting by stating that he “could have
terminated” Nirsberger when he first became business
manager. Nirsberger immediately said that he did not
like where the conversation was going, and was “not
going to say another word until” he had a representative
present. As Paley continued speaking, Nirsberger inter-
rupted, asserting, “Listen, do you know what I’m saying,
I’m invoking my Weingarten rights.”
Paley asked Nirsberger whom he wanted to represent
him, and he asked for Jerry Comer. Comer works for the
International Brotherhood of Electrical Workers, not for
Respondent Local 236. He is an International Represen-
tative of the IBEW, and, in that position, acts as a liaison
between the International and its local unions. He works
out of his home in Syracuse, New York, 120 miles and
over 2 hours’ drive from Respondent’s offices. In re-
sponse to Nirsberger’s request for representation by
Comer, Paley told Nirsberger: “You can have anybody
you want here, but I want to finish this conversation.”
Nirsberger refused to continue the conversation without
Comer and left the office. Within minutes, Paley dis-
charged Nirsberger.
The judge dismissed the 8(a)(1) complaint alleging
that the Respondent terminated Nirsberger’s employment
for requesting coworker representation during the meet-
ing with Paley. The judge concluded that, because
Comer worked in Syracuse, Nirsberger’s insistence on
Comer’s presence “would have required, at least, a three
hour delay in the meeting.” According to the judge, “the
Respondent was not obligated to delay the meeting.” He
therefore concluded that Respondent had lawfully termi-
nated Nirsberger.
The Respondent renews the contention, on which the
judge did not pass, that the Act did not protect Nirsber-
ger’s request for Comer’s representation because Comer
was not Nirsberger’s coworker. We agree. Accordingly,
we affirm the judge’s recommended Order dismissing
the complaint in its entirety.
Analysis
Section 7 of the Act provides that employees “shall
have the right to self-organization, to form, join, or assist
339 NLRB No. 156
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1200
labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection . . . .” In
NLRB v. Weingarten,4 the Supreme Court held that the
Board permissibly construed Section 7 to grant an em-
ployee the right to a union representative at any investi-
gatory interview that the employee reasonably believed
might result in disciplinary action.5 As the Court ex-
plained, “[t]he action of an employee in seeking to have
the assistance of his union representative at a confronta-
tion with his employer clearly falls within the literal
wording of § 7 . . . .”6
Unresolved in Weingarten, however, was the broader
question of whether nonunionized employees—who also
enjoy the protection of Section 7—possess the right to
have a coworker present during disciplinary investiga-
tions. In Epilepsy Foundation,7 the Board held that, even
though the Act is susceptible to other reasonable con-
structions, “the rule enunciated in Weingarten applies to
employees not represented by a union as well as to those
that are.”8 Accordingly, under Epilepsy Foundation, an
employee has the right to request the presence of a co-
worker during any investigatory interview that may rea-
sonably lead to discipline.9
Here, invoking Epilepsy Foundation, the General
Counsel asserts that Nirsberger’s request for representa-
tion by Comer was protected under Section 7. The re-
cord affirmatively demonstrates, however, that Comer
was not Nirsberger’s coworker. As the judge explained,
Comer is an international representative of the IBEW,
which is not the employer here. Comer is paid by the
International, not the Respondent, and he reports to an
International vice president. Notably, Nirsberger ex-
plained at the hearing that he requested Comer’s pres-
ence precisely because Comer did not work for the Re-
spondent. Rather, because Comer worked for the Inter-
national (the parent of, but separate entity from, the Lo-
cal), Nirsberger felt that Comer would be better able to
mediate the conflict.
Under these circumstances, we find that Nirsberger did
not act in a concerted manner with a coworker for mutual
aid or protection. Comer, although not a wholly disinter-
ested third party, was not Nirsberger’s coworker. Nirs-

4 420 U.S. 251 (1975).
5 Id. at 252.
6 Id. at 260.
7 331 NLRB 676 (2000), enfd. in relevant part 268 F.3d 1095 (D.C.
Cir. 2001). Various amici curiae urge the Board to overrule Epilepsy
Foundation. In view of the disposition herein, we find it unnecessary
to address those contentions.
8 Id. at 679.
9 Id.
berger’s request for Comer, although rational, was “not
bottomed upon acting in concert for mutual aid and pro-
tection as guaranteed in Section 7,”10 but constituted, in
essence, a request for “personal and private assistance.”11
As such, Respondent’s consent to Nirsberger’s request
was not compelled by Section 7.12
The General Counsel nevertheless contends that Nirs-
berger’s discharge was unlawful because Respondent
terminated Nirsberger solely for invoking his Weingarten
rights, not for requesting a third-party representative.
We agree that, had Nirsberger been terminated merely
for requesting coworker representation, Respondent
would have violated the Act.13 The record establishes,
however, that Nirsberger was terminated not merely for
requesting representation, but for insisting on the pres-
ence of Comer as his chosen representative. Indeed,
Paley was receptive to Nirsberger’s request for represen-
tation, asking Nirsberger whom he would like to repre-
sent him. It was only after Nirsberger refused to partici-
pate in the meeting, insisting on representation by
Comer, that Paley made the decision to terminate him.
On these facts, we conclude that Paley fired Nirsberger
for insisting on third-party representation, not for invok-
ing rights protected under Epilepsy Foundation.14
ORDER
The complaint is dismissed.

10 McLean Hospital, 264 NLRB 459, 472 (1982).
11 TCC Center Co., 275 NLRB 604, 609 (1985). See also Consoli-
dated Casinos Corp., 266 NLRB 988, 1008 (1983) (“An employee who
requests the presence of his personal lawyer . . . is not invoking the
support of the lawyer as part of a common cause with others. The
lawyer is for his personal assistance.”).
12 A request by one statutory employee for assistance from another
statutory employee (albeit of a different employer) can constitute con-
certed protected activity. Thus, it may well be that Nirsberger could
not be fired for making the request.
13 See E. I. du Pont & Co., 289 NLRB 627, 630 fn. 15 (1988) (noting
that Sec. 7 protects an employee’s “right simply to ask for the presence
of a fellow employee” at an investigatory interview); cf. Epilepsy
Foundation, 331 NLRB at 678 fn. 10.
14 Because we dismiss the complaint solely because Comer was not
Nirsberger’s coworker within the meaning of Epilepsy Foundation, we
need not pass on the Respondent’s alternative argument that Nirsberger
had no reasonable fear of discipline during his meeting with Paley, or
the judge’s finding that Comer was an inappropriate representative
because he was geographically unavailable. We likewise observe that
the facts of this case do not reach the issue of whether the policy basis
of Epilepsy Foundation is ripe for reconsideration.
ELECTRICAL WORKERS LOCAL 236 1201
Alfred M. Norek, Esq., for the General Counsel.
Bruce C. Bramley, Esq. (Pozefsky, Bramley & Murphy), for the
Respondent.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on November 13, 2001, in Albany, New York.
The complaint herein, which issued on August 16, 2001, was
based upon an unfair labor practice charge and an amended
charge that were filed on June 25 and August 10, 2001, by Fre-
derick Nirsberger, an individual. The complaint alleges that the
Respondent discharged Nirsberger because he engaged in pro-
tected concerted activities, including requesting a representative
during an investigative interview that he reasonably believed
could lead to discipline, in violation of Section 8(a)(1) of the
Act.
FINDINGS OF FACT
I. JURISDICTION
Respondent, a labor organization, admits and I find that it
has been engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE FACTS
In February 1999, three local unions of the International
Brotherhood of Electrical Workers (the International, Local
724) (Albany), Local 438 (Troy), and Local 166 (Schenectady)
merged to become International Brotherhood of Electrical
Workers, Local 236, AFL–CIO (the Respondent). At that time,
the International appointed Bernard Mericle, who had been the
business manager of Local 166, to be the acting business man-
ager for the Respondent until an election of officers for the
Respondent could be held. Nirsberger, who had been business
manager/organizer for Local 438, was appointed by Mericle to
the same position for the Respondent. Nirsberger and the other
staff employees of the Respondent were members of the Inter-
national, but were not represented by any collective-bargaining
representative. Jerry Comer is an International Representative
with an office in Syracuse, New York. He acts as a liaison be-
tween the International and specified locals, including the Re-
spondent, handling disagreements within the local unions in his
area. He does not have an office at the Respondent’s facility,
but he visits periodically, and is supervised by an International
vice president. Dave Cox had been a supporter of Mericle in his
election campaigns, and at the relevant times was employed as
a collection officer for Local 438 Health and Benefit Funds,
with an office at the Respondent’s facility.
An election for officers of the Respondent was conducted in
June 2000,1 Timothy Paley, a former officer of Local 724, re-
ceived five votes more than Mericle, but the International or-
dered a second election because objections to the election were
filed with the International. A second election was conducted in
September, which Paley also won, and he was sworn in as

1 Unless indicated otherwise, all dates referred to herein relate to the
year 2000.
business manager of the Respondent on September 8. Prior to
the first election, Nirsberger supported Mericle by making tele-
phone calls and distributing brochures on his behalf. Between
the first and second election, Paley called Nirsberger and asked
him for his support in the upcoming campaign, and Nirsberger
told him that he intended to remain neutral in the campaign.
Sometime between June and September, Nirsberger changed
his mind and actively campaigned for Mericle.
The Respondent’s constitution gives the business manager
absolute authority to hire and fire representatives and assistants.
At the time of the merger, Skip Goyette, from Local 166, Har-
old Joyce, from Local 724, John McCauley, from Local 438,
and Nirsberger were the assistant business managers, and Don
Rahm, Local 724, and Bob Shutter, Local 166, were the organ-
izers. Mericle fired Rahm after the first election in June; Paley
rehired Rahm after he won the election in September. In addi-
tion, Paley fired Shutter, Joyce, and Goyette after the Septem-
ber election; McCauley retired shortly thereafter. After the
September election, Paley met with Nirsberger, who said that
he couldn’t believe that Paley won the election. Paley told him
that the members were angry with the way the union had been
operated. Because Paley felt that Nirsberger was smart, he felt
that it would be in the best interest of the union to keep him on
staff, which he did.
On November 13, Nirsberger left a note for Paley stating:
“This is to inform you that I will be unable to be at work on
Nov 20, 21 and 22, 2000 due to prior arrangements. Thank
you.” He went hunting on those days, Monday, Tuesday, and
Wednesday, Thursday (Thanksgiving) and Friday (when the
Respondent’s office was closed). Paley had not spoken to him
about these absent days prior to December 29. In a memo to
Paley dated October 16, Nirsberger requested the week of Oc-
tober 23 for vacation. Paley answered that he couldn’t give
him that time off because he needed him for training and the
upcoming national election. In about mid-September, Nirsber-
ger, Paley, and Rahm were together, and Paley asked Nirsber-
ger, “Is there any reason why you can’t be here at 8:00 in the
morning?” Nirsberger said, “No, absolutely none,” and Paley
said: “Everybody else shows up at 8:00, I want you here at
8:00.” Paley agrees with the substance of Nirsberger’s testi-
mony about this conversation, and testified that it came about
because other staff members had complained to him that Nirs-
berger was coming and going when he pleased. Nirsberger was
absent from work on December 26 and 27, because he was ill,
returning to work on December 28. On December 26, he called
Cox and asked him to put a note in Paley’s box saying that he
was ill and wouldn’t be at work. On December 28, Paley asked
him where he was the last 2 days and he said that he had been
sick. Paley then asked if he had told anyone that he was sick,
and he said that he had asked Cox to put a note in Paley’s box.
Paley then told him that the next time that happens, he should
call Paley directly, and he said that he would.
There was a meeting on December 29, of Paley, Rahm, and
Nirsberger that is the basis of the unfair labor practice charge
and complaint herein. Paley testified that because of the many
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1202
crises that had to be dealt with since September 8, he had not
had an opportunity to sit down with his organizers to discuss a
plan for the future. He decided to have a meeting with Nirsber-
ger on December 29 “to outline a strategy so that the two new-
est organizers, Joe Hlat, who came from 166, and Mike Doyle,
who came from 438 . . . I was going to ask that Fred give them
the benefit of . . . the experience that he had.”2 He had no inten-
tion of disciplining him at this meeting. Paley asked Rahm to
bring Nirsberger to his office. Rahm went to Nirsberger’s of-
fice, told him that Paley wanted to see them, and they went to
Paley’s office. Nirsberger testified that Paley began the meeting
by saying: “I understand you’re putting your papers in for re-
tirement.” Nirsberger answered that he wasn’t, but was consid-
ering it as an option. Paley then said: “You told me that you
were going to remain neutral in the election and you didn’t,”
and Nirsberger said, “That’s correct.” Paley then said: “I told
you to stay away from Dave Cox and you didn’t. I could have
terminated you for taking those days off during hunting sea-
son.” Nirsberger testified that he “didn’t like the way this con-
versation was going” and that he thought that he was going to
be fired, so he said, “I don’t like where we’re going with this.
I’m not going to say another word until I have a rep here.”
Paley continued speaking, and Nirsberger said, “Listen, do you
know what I’m saying, I’m invoking my Weingarten rights.”
Paley and Rahm said yes, and Nirsberger said that the
conversation was over “until you get me a rep here.” Paley
asked, “Who do you want?” Nirsberger said, “I want Jerry
Comer from Syracuse” and Paley picked up the phone and said,
“I can arrange that.” Paley started to speak again, and
Nirsberger said, “I’m not saying another word until Jerry gets
here, so when Jerry gets here I’ll be glad to continue the con-
versation.” He left Paley’s office and stopped at Cox’s door,
which is next to Paley’s, and told him that he had invoked his
Weingarten rights in a meeting with Paley, and returned to his
office. About 5 minutes later, Paley walked into his office, said:
“For your information, Weingarten doesn’t apply to you, you
should have listened to my offer.” Paley then left a termination
letter on Nirsberger’s desk. The letter states that, pursuant to
the union’s Constitution, he is discharged effective January 2,
2001. Paley’s testimony was not as clear and direct as Nirsberger’s
about this meeting. Initially, he testified:

I said, “I could have done a lot of things, I could have not
hired you”, I didn’t actually say that, the gist of my conversa-
tion was, I could have done a lot of things and I didn’t exer-
cise my options.” We could have—we wanted to come up
with a game plan to try to best serve the members and Fred
wouldn’t allow any dialogue, he just absolutely refused to
talk, everything was in mandate form, he—there was no op-
portunity for dialogue.

In answer to the next question from his counsel, he testified:

2 In his affidavit given to the Board, Paley stated: “The purpose of
the meeting with Nirsberger was to determine whether or not he would
do his share of the work and be part of the team.”
When Fred came in with Don, they sat down and I said to
Fred, I said, “When you came in here, I could have terminated
you”, meaning in September, “but I didn’t, you haven’t done
anything but issue mandates to me and I ignored the man-
dates.”

He told Nirsberger that he could have terminated him for any
reason. At some point, Nirsberger said that he didn’t like where
the discussion was going, and Paley asked to be allowed to
finish, but Nirsberger said that he was invoking his Weingarten
rights and asked if Paley knew what that was. Paley said he did,
but “they don’t apply here.” Nirsberger said that he wanted
some representation, and Paley pointed to Rahm and said,
“Here’s your Executive Board Chairman right here, but that’s
not what this is about.” Paley told him that the union was in a
terrible situation, and they had to unite for the good of the
members, and that’s what the meeting was about. Nirsberger
again invoked his Weingarten rights and asked to have a repre-
sentative present. Paley asked him who he wanted, and he said
that he wanted Comer to be his representative. Paley said, “You
can have anybody you want here, but I want to finish this con-
versation.” Nirsberger said, “As far as I’m concerned, this con-
versation is over,” and left Paley’s office. As soon as Nirsber-
ger left his office, Paley decided to fire him because, “he re-
fused to cooperate with me, he wouldn’t have any dialogue to
help better the membership.” He had a termination letter pre-
pared for Nirsberger, and dropped it on his desk saying, “You
should have listened to what I had to say.” He testified that he
did not fire him for invoking his Weingarten rights; he fired
him because, “he would call anyone in the office, but me, he
didn’t demonstrate the respect or try to help the local union
move forward in a positive fashion.”
Rahm testified that Paley began the meeting by telling Nirs-
berger of a few occasions when he could have fired him. Nirs-
berger then said something like: “I don’t like where this is go-
ing, I want to invoke my Weingarten rights. You know what
that is.” Rahm said that he knew what Weingarten rights were,
but said that this wasn’t a disciplinary meeting. He believes that
Nirsberger said that he wanted a International representative to
be present. Paley then attempted to continue the conversation,
but Nirsberger interrupted, saying, “This conversation is not
taking place, I want a rep here.” Paley said, “You can have
whoever you want, who do you want?” He does not recall
Nirsberger naming Comer. Nirsberger then got up and walked
out of the room. Paley said, “I can’t deal with this, he won’t
talk to me.”
William O’Connor, who had previously been a member of
Local 438 and, as a result of the merger, has been a member of
the Respondent, testified to an incident that occurred on Sep-
tember 3, 2001, after the regular monthly union meeting. There
was a tradition at the time that union members went to a local
tavern at the conclusion of the meeting. While there, he met
Rahm and they discussed a number of subjects about the Re-
spondent. At one point during this meeting, Rahm told him: “If
Fred didn’t ask for his Weingarten rights, he would still be
here.” O’Connor, who was surprised by this statement because
he thought that Rahm knew that he was friendly with Nirsber-
ger, responded, “You guys screwed him, but that’s up to the
ELECTRICAL WORKERS LOCAL 236 1203
powers that be.” That was the extent of the conversation. Rahm
did not testify about this conversation.
II. ANALYSIS
In N.LRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), the
Supreme Court agreed with the Board that Section 7 gives an
employee the right to refuse to participate in an interview with
his/her employer without union representation, where he/she
reasonably fears that it might result in discipline. The Court
made a number of points in its decision: the employee must
affirmatively request representation, and “the employee’s right
to request representation as a condition of participation in an
interview is limited to situations where the employee reasona-
bly believes the investigation will result in disciplinary action.”
The Court quoted from the Board’s Decision in Quality Mfg.
Co., 195 NLRB 197 at 199 (1972):

We would not apply the rule to such run-of-the-mill shop-
floor conversations as, for example, the giving of instructions
or training or needed corrections of work techniques. In such
cases there cannot normally be any reasonable basis for an
employee to fear that any adverse impact may result from the
interview, and thus we would then see no reasonable basis for
him to seek the assistance of his representative.

The Supreme Court further stated that the “exercise of the
right may not interfere with legitimate employer prerogatives.”
The result is that, while the employee, in an appropriate situa-
tion, can refuse to continue with an interview without a repre-
sentative, the employer may continue the investigation without
the imput of the objecting employee, “…thus leaving the em-
ployee the choice between having an interview unaccompanied
by his representative, or having no interview and foregoing any
benefits that might be derived from one.”
The rights established by Weingarten for employees repre-
sented by a collective bargaining representative were extended
to employees in nonunion workplaces by the Board in Epilepsy
Foundation of Northeast Ohio, 331 NLRB 676 (2000). In that
case the Board found that an employer whose employees were
not represented by a union violated Section 8(a)(1) of the Act
by discharging an employee for demanding that a coworker
accompany him to an investigatory interview.
Taking the instant matter step-by-step, it is clear that Nirs-
berger, a nonrepresented employee, was entitled to Weingarten
rights pursuant to Epilepsy Foundation. The more difficult
questions are whether he was entitled to invoke this right and,
ultimately, whether his termination was unlawful.
The initial issue therefore is whether Nirsberger had a rea-
sonable fear that the December 29 meeting with Paley and
Rahm would result in discipline. I believe that he did. Whether
you credit the testimony of Rahm, Nirsberger or Paley,3 Paley’s
opening statement to Nirsberger was: “I could have fired
you…” Considering that Nirsberger had opposed Paley in the
two recent union elections (after promising Paley after the first
election that he would remain neutral), and had seen the other

3 Although there were few substantive differences between their ver-
sions of this meeting, because I found Paley to be the most evasive of
the three and Rahm to be the most direct and believable, I generally
credit them in the order of Rahm, Nirsberger, and Paley.
agents who supported Mericle fired or, in one case, resigned, it
was certainly reasonable for Nirsberger to fear for his job upon
hearing Paley start the meeting by saying that he could have
fired him earlier. In Consolidated Edison, 323 NLRB 910
(1997), the Board stated:

Weingarten—therefore requires an employer to evaluate an
investigatory interview situation from an objective standpoint-
i.e., whether an employee would reasonably believe that dis-
cipline might result from the interview. Consequently, it is no
answer to this allegation of a Weingarten violation that the
Respondent’s supervisors were only engaged in fact finding,
or that they had no intention of imposing discipline on Hunter
at the time of the interview. Neither of those conditions is in-
consistent with Hunter’s reasonable belief that discipline
could result from the interview.

In Circuit-Wise, Inc., 308 NLRB 1091 at 1109 (1992), in a
situation similar to the instant matter, the Administrative Law
Judge stated:

The Respondent’s witnesses testified that the purpose of the
meeting was not to administer discipline. However, this fact
was not made known to Genus, and for that matter, the sub-
ject matter of the meeting was not made known to him. Genus
testified that he believed that the meeting could result in disci-
pline and I believe the objective evidence of record amply
supports that view. He had previously been warned by Abate
about smoking and told that discipline was not going to be
administered at that time. He had published an article noting
his support for the Union and encouraging employees to stand
up for their rights, an action mentioned negatively by Abate.
He had had a confrontation with Ames over not following
Lech’s work assignment the day before, and he reasonably
believed that management was aware of his August 6 letter. I
find he reasonably feared discipline could result from the
meeting based on objective evidence.

The instant situation is very similar. Although Paley and Rahm
testified that the meeting was not meant to discipline Nirsber-
ger, they never told him that at the meeting. Rather, Paley be-
gan the meeting by telling Nirsberger that he could have fired
him earlier. That statement, combined with the events of the
prior six months, were sufficient for Nirsberger to reasonably
fear that the meeting would result in discipline.
O’Connor’s uncontradicted and credible testimony that
Rahm told him in September 2001 that Nirsberger would still
be employed by the Respondent if he had not asked for his
Weingarten rights at the December 29 meeting goes a long way
toward establishing that he was fired for engaging in protected
concerted activities, invoking his Weingarten rights. However,
there is more, principally timing. Although Paley testified that
he fired Nirsberger because he would not cooperate with him or
talk to him, that had been going on for almost four months. Yet
he had not fired him earlier, but did so five minutes after he
invoked his Weingarten rights. I therefore find that was the
reason for the termination.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1204
The final issue is whether the termination violated Section
8(a)(1) of the Act. This turns upon whether there was any de-
fect in Nirsberger’s request at the December 29 meeting. I
credit Nirsberger’s testimony that at the meeting, he said that
the conversation was over “until you get me a rep here.” When
Paley asked whom he wanted, he said, “I want Jerry Comer
from Syracuse.” He testified further that Paley responded, “I
can arrange that.” On this point I credit Paley, whose testimony
on this point is more reasonable and comports better with the
facts. I therefore find that after Nirsberger said that he wanted
Comer as his representative, Paley told him that he could have
anybody he wanted to represent him, but he wanted to finish
the conversation. In Coca-Cola Bottling Co. of Los Angeles,
227 NLRB 1276 (1977), after being called into a meeting with
his supervisor, the employee requested the presence of his shop
steward at the meeting, even though he and his supervisor were
aware that the shop steward was not scheduled to return from
vacation for three days. The supervisor told the employee that
the steward was away, and that he wanted to get the matter out
of the way and did not want to hold it in abeyance until the
steward returned. The Board stated:

there is nothing in the Supreme Court’s opinion in Weingar-
ten which indicates that an employer must postpone inter-
views with its employees because a particular union
representative, here the shop steward, is unavailable either for
personal or other reasons for which the employer is not
responsible, where another representative is available whose
presence could have been requested by the employee in the
absent representative’s place. Indeed, the Supreme Court was
careful to point out that the exercise by employees of the right
to representation at an interview may not interfere with
legitimate employer prerogatives. Certainly the right to hold
interviews of this type without delay is a legitimate employer
prerogative.

The Board, in Montgomery Ward & Co., 273 NLRB 1226 at
1227 (1984), citing Coca-Cola, stated:

when an employee requests a representative who is unavail-
able, the employer can deny the request and is not required to
postpone the interview, secure an alternative representative, or
otherwise take steps to accommodate the employee’s specific
request. The Board has held that in such circumstances the
employee has the right and, indeed, the obligation to request
an alternative representative in order to invoke the Weingar-
ten protections.

In Roadway Express, Inc., 246 NLRB 1127 at 1129 (1979), an
employee was suspended for refusing to attend a meeting with
his supervisor because of the unavailability of the union repre-
sentative whom he wanted. In finding no violation, the Board
stated: “Nowhere in Weingarten does the Court state or suggest
that an employee’s interest can only be safeguarded by the
presence of a specific representative sought by the employee, as
opposed to being accompanied by any union representative.” In
Crown Zellerbach, Inc., 239 NLRB 1124 at 1126 (1978), the
administrative law judge stated:

The United States Supreme Court did not define in Weingar-
ten the characteristics that an employee representative must
have. However, the Board has made it clear that there is no
magic word or words to describe those characteristics. It is not
necessary that the employer provide the employee the best
representative possible. Further, no particular title need be
held by the representative; he may be no more than a witness,
in a proper case.

Nirsberger had the right to request to have a representative
present at the meeting, and his request was for Comer. The
problem with this request is that Comer was located in Syra-
cuse, New York, approximately 120 miles from Schenectady,
where the Respondent’s office is located. Even if Comer were
in his office at the time, and was willing to leave immediately,
it would take at least 3 hours for him to get to the meeting.
Paley told Nirsberger that he could have any representative
whom he wanted (even recommending Rahm, perhaps a
Hobson’s choice), but he wanted to finish the conversation and
Coca-Cola says that he had that right. Epilepsy Foundation
gave Nirsberger the right to have a representative present with
him at the meeting; however, under the circumstances present
at that location, whom could he choose? Material Research
Corp., 262 NLRB 1010 (1982), which was overruled by Sears,
Roebuck & Co., 274 NLRB 230 (1985), in granting unrepre-
sented employees Weingarten rights, discussed the fact that
since the employees were not represented by a union, their
representatives at these meetings would have to be coworkers
or fellow employees. Such an individual, Cox, had an office
next to Paley. As Nirsberger went to Cox’s office immediately
after leaving Paley’s office on December 29 to tell him what
had occurred, and as Cox supported Mericle in the elections,
presumably, he and Nirsberger were friends. He could have
been called to be Nirsberger’s representative at the meeting and
there is no evidence that Paley would have objected to his pres-
ence. Nirsberger never explained why he did not request Cox,
rather than Comer. I therefore find that because Nirsberger
requested to have Comer as his representative, which would
have required, at least, a three hour delay in the meeting, and
did not designate an alternative even though Paley told him that
he could have anybody whom he wanted, the Respondent was
not obligated to delay the meeting. The Respondent therefore
did not violate the Act by terminating Nirsberger when he re-
fused to continue the meeting.
CONCLUSIONS OF LAW
1. The Respondent, a labor organization, has been engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Respondent did not violate Section 8(a)(1) of the Act
as alleged in the complaint.
ELECTRICAL WORKERS LOCAL 236 1205
On these findings of fact, conclusions of law and on the en-
tire record, I issue the following recommended4

4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
ORDER
Having found that the Respondent has not engaged in the un-
fair labor practices alleged in the complaint, the complaint is
dismissed in its entirety.