Epilepsy Foundation of Northeast Ohio

National Labor Relations Board - Board Decisions

Jul 10, 2000

331 N.L.R.B. 676 (N.L.R.B. 2000)

DECISIONS OF THE NAITONAL LABOR RELATIONS BOARD 676
Epilepsy Foundation of Northeast Ohio and Arnis
Borgs and Ashraful Hasan. Cases 8–CA–28169
and 8–CA–28264
July 10, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX,
LIEBMAN, HURTGEN, AND BRAME
On January 2, 1998, Administrative Law Judge Richard
A. Scully issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and the
Respondent filed an answering brief.
The National Labor Relations Board has considered the
decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions only to the extent consistent with
this Decision and Order.
Introduction
The General Counsel excepts to the judge’s finding that
the Respondent did not violate Section 8(a)(1) of the Act
by discharging employees Arnis Borgs and Ashraful
Hasan. The General Counsel contends that both Borgs
and Hasan were discharged for engaging in protected con-
certed activity. In arguing that the discharge of Borgs is
unlawful, the General Counsel requests the Board to once
again consider the question of whether the principles set
forth by the Supreme Court in NLRB v. J. Weingarten2
should be extended to employees in nonunionized work-
places, to afford them the right to have a coworker present
at an investigatory interview which the employee reasona-
bly believes might result in disciplinary action. The Gen-
eral Counsel contends that affording nonunionized em-
ployees this right is consistent with the Court’s decision.
We agree with the General Counsel’s contentions, includ-
ing those concerning Weingarten, and for the reasons set
forth below, find that the discharges of both Borgs and
Hasan are unlawful.
The Discharge of Arnis Borgs
The essential facts pertaining to Borgs’ discharge are
not in dispute. The Respondent provides services to per-
sons affected by epilepsy. One of its programs involves a
research project concerning school-to-work transition for
teenagers with epilepsy. Borgs worked on this project as
an employment specialist, and Ashraful Hasan was the
Respondent’s transition specialist on this project.
On January 17, 1996,3 Borgs and Hasan prepared a
memo to the Respondent’s director of vocational services,
Rick Berger, who was their supervisor on the project. The
memo stated that Berger’s supervision of Borgs and Hasan
was no longer required.4 A copy of this memo was also
sent to the Respondent’s executive director, Christine
Loehrke. Thereafter, Borgs and Hasan learned that Loe-
hrke and Berger were very unhappy about the memo. In
view of this reaction, on January 29, Hasan and Borgs
prepared another memo, this time addressed to Loehrke,
which elaborated on the reasons for their prior assertion
that Berger’s supervision was no longer required. Specifi-
cally, the memo was critical of Berger’s involvement in
the program, and cited several examples of incidents
where, in their view, Berger acted inappropriately.

1 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F. 2d
362 (3d Cir. 1951). We have carefully examined the record and find
no basis for reversing the findings.
2 420 U.S. 251 (1975).
3 All dates hereafter are in 1996 unless stated otherwise.
On February 1 Loehrke approached Borgs and directed
him to meet with her and Berger. Borgs felt intimidated
by the prospect of meeting with both Loehrke and Berger
together because of a reprimand he received at a prior
meeting with them,5 and expressed these reservations to
Loehrke. Borgs asked if he could instead meet with Loe-
hrke alone. Loehrke refused Borgs’ request. Borgs then
asked if Hasan could be present with him at this meeting,
but Loehrke refused this request as well. Borgs continued
to express his opposition to meeting alone with Loehrke
and Berger, and in response to this opposition, Loehrke
told Borgs to go home for the day and report back at 9
a.m. the next morning.
The following day, Borgs met with Loehrke and Jim
Wilson, the Respondent’s Director of Administration.
Loehrke told Borgs that his refusal to meet the previous
day constituted gross insubordination and that he was ter-
minated. Loehrke then gave Borgs a letter of termination.6
The judge found that the Respondent discharged Borgs
for his persistent refusal to comply with Loehrke’s direc-
tive to meet alone with her and Berger. The judge noted
4 The memo read as follows:
Mr. Jim Troxell and Dr. Bob Fraser have continued to pro-
vide supervisory input pertaining to service delivery and the re-
search 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 re-
gard.
5 In December 1995 Borgs was called into a meeting with Berger,
Loehrke, and another supervisor, and was interrogated about his discus-
sions about salary information with other employees. He was also
reprimanded at that meeting for having the salary discussions. No
exceptions were filed to the judge’s finding that this conduct violated
Sec. 8(a)(1) of the Act.
6 In addition to describing the failure to attend the meeting as gross
insubordination, the letter also made reference to the January 17 memo,
as well as to a “failure to build constructive work relationships with
management personnel,” and a “resistance to accept responsibility for
attempting to attain articulated performance goals.” The letter did not
refer to these other acts as examples of gross insubordination.
331 NLRB No. 92
EPILEPSY FOUNDATION OF NORTHEAST OHIO 677
that, under Weingarten, employees in unionized work
forces are entitled to representation in investigatory inter-
views which the employee reasonably believes could re-
sult in disciplinary action, but under current Board prece-
dent, employees in nonunionized workplaces do not have
the right to have a coworker present in similar circum-
stances. E. I. DuPont & Co., 289 NLRB 627 (1988). Ac-
cordingly, the judge found that Borgs had no statutory
right to condition his attendance at the meeting on the
presence of Hasan, and thus, the Respondent’s discharge
of Borgs for refusing to attend the meeting did not violate
Section 8(a)(1) of the Act.
We agree with the judge’s finding that Borgs was dis-
charged for refusing to attend the meeting with Loehrke
and Berger.7 We also agree that the judge accurately ap-
plied the relevant Board precedent. After careful consid-
eration, however, we find that precedent to be inconsistent
with the rationale articulated in the Supreme Court’s Wein-
garten decision, and with the purposes of the Act.
Consequently, we shall overrule that precedent today and
find that the Respondent’s termination of Borgs for his
attempt to have a coworker present at the meeting was
unlawful.
Our examination of this issue begins with the Supreme
Court’s seminal Weingarten decision. There, as noted
above, the Court held that an employer violated Section
8(a)(1) by denying an employee’s request that a union
representative be present at an investigatory interview
which the employee reasonably believed might result in
disciplinary action. The Court, in upholding the Board’s
finding of a violation, found that the employee’s action in
seeking representation in such circumstances “falls within
the literal wording of Section 7 of the Act that
“[e]mployees shall have the right . . . to engage in . . . con-
certed activities for the purpose of mutual aid or protec-
tion.” Id. at 260. The Court explained further as follows:
The union representative whose participation he seeks
is however safeguarding not only the particular em-
ployee’s interest, but also the interests of the entire
bargaining unit by exercising vigilance to make cer-
tain that the employer does not initiate or continue a
practice of imposing punishment unjustly. Id.
Read together, these statements explain that the right to
the presence of a representative is grounded in the ration-
ale that the Act generally affords employees the opportu-
nity to act together to address the issue of an employer’s
practice of imposing unjust punishment on employees.
Because the facts at issue in Weingarten involved a re-
quest for the presence of a union representative, the
Court’s decision did not specifically refer to circumstances
involving the request for a coworker representative in
nonunion settings. The Board, however, has addressed
this precise issue on several occasions. In Materials Re-

7 We also note that the Respondent does not contend that Borgs was
discharged for any other reason.
search Corp., 262 NLRB 1010 (1982), the Board found
that the Weingarten right includes the right to request the
presence of a coworker at an investigatory interview in a
nonunion setting. In that case, the Board relied on the fact
that Weingarten emphasized that the right to the assistance
of a representative is derived from the Section 7 protection
afforded to concerted activity, rather than from a union’s
right pursuant to Section 9 to act as the employee’s repre-
sentative for the purpose of collective bargaining. Conse-
quently, the Board found that the ability to avail oneself of
this protection does not depend on whether the employees
are represented by a union.
The Board overruled Materials Research Corp., how-
ever, in Sears, Roebuck & Co., 274 NLRB 230 (1985),
and held there that Weingarten principles do not apply in
circumstances where there is no certified or recognized
union. In that case, the Board specifically rejected the
prior decision’s reliance on the fact that the Weingarten
rights are based on Section 7, stating that “[t]he scope of
Section 7’s protections may vary depending on whether
employees are represented or unrepresented. . . .” The
Board also expressed the view that extending Weingarten
rights to employees not represented by a union is inconsis-
tent with the Act because it infringes on an employer’s
right to deal with employees on an individual basis when
no union is present. Id. at 231.
The Board modified the Sears rationale in E. I. DuPont
& Co., 289 NLRB 627 (1988). In that case, the Board
adhered to its position that Weingarten rights are not ap-
plicable in nonunion settings, but acknowledged that “the
statute might be amenable to other interpretations.” Id. at
628. Thus, the Board specifically disavowed Sears insofar
as it held that the Act compels a finding that Weingarten
rights are applicable only in unionized workplaces. Id. at
fn. 8. The Board, however, declined to return to the rule
of Materials Research for several reasons. First, the
Board stated that the Court in Weingarten placed the issue
in the context of the Act’s purpose of redressing the per-
ceived balance of economic power between labor and
management, and that this consideration is of lesser sig-
nificance if the employees are not represented by a union.
Second, the Board stated that in a nonunion setting, the
employee representative has no obligation to represent the
interests of the entire unit, and thus, it is less likely that the
representative’s presence will safeguard the interests of
employees as a group. Id. at 629. Third, the Board stated
that it is less likely that the employee representative would
have the skills equivalent to those that a union representa-
tive would have to provide effective representation to the
employee. Id. Finally, the Board stated that the assertion
of a Weingarten right might be more detrimental to the
employee in a nonunion setting if the employer then de-
cides to forego the interview rather than conduct it with an
employee representative. The Board explained that, unlike
the union-represented employee who had a framework for
resolving grievances, the unrepresented employee could
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 678
lose his only opportunity to present his side of the issue.
Id. at 630. Accordingly, while recognizing that the
Board’s holding in Materials Research was not necessarily
inconsistent with the purposes of the Act, the Board in
Dupont declined to return to the holding of that case.
We disagree with the Board’s holdings in Sears and
Dupont, and find that a return to the rule set forth in Mate-
rials Research, i.e., that Weingarten rights are applicable
in the nonunionized workplace as well as the unionized
workplace, is warranted .8 Sears and Dupont misconstrue
the language of Weingarten and erroneously limit its ap-
plicability to the unionized workplace. In our view, the
Board was correct in Materials Research to attach much
significance to the fact that the Court’s Weingarten deci-
sion found that the right was grounded in the language of
Section 7 of the Act, specifically the right to engage in
“concerted activities for the purpose of mutual aid or pro-
tection.” This rationale is equally applicable in circum-
stances where employees are not represented by a union,
for in these circumstances the right to have a coworker
present at an investigatory interview also greatly enhances
the employees’ opportunities to act in concert to address
their concern “that the employer does not initiate or con-
tinue a practice of imposing punishment unjustly.”9 Thus,
affording Weingarten rights to employees in these circum-
stances effectuates the policy that “Section 7 rights are
enjoyed by all employees and are in no wise dependent on
union representation for their implementation.” Glomac
Plastics, Inc., 234 NLRB 1309, 1311 (1978).10
We find no merit to the contention raised in Sears, and
subsequently disavowed in Dupont, that the imposition of
Weingarten rights in these circumstances “wreaks havoc”
with the provisions of the Act that enable an employer to
deal with employees on an individual basis when no union
is present. The Act clearly protects the right of employ-

8 We agree with Member Hurtgen that the Board should not reverse
important legal doctrine absent compelling considerations for doing so.
Contrary to our colleague, however, we find that such compelling con-
siderations are present here because, as explained below, the doctrine
infringes on the exercise of Sec. 7 rights and is inconsistent both with
Supreme Court precedent and the policies of the Act.
9 Member Hurtgen asserts that the Court in Weingarten could not
have contemplated the affording of such a right to employees in a non-
union setting because the Court in its discussion referred to the role
played by “the union representative whose participation [the employee]
seeks” in safeguarding the interests of “the bargaining unit.” These
terms, however, are necessary to accurately describe the unionized
circumstances that were before the Court in that case. In view of the
Court’s reference to this right as one grounded in Sec. 7 of the Act, the
Court’s use of the terms “union representative” and “bargaining unit”
does not establish that the Court did not envisage the right to such
representation in a nonunion setting.
10 We disagree with our dissenting colleagues’ assertions that Sec. 7
of the Act gives nonunionized employees only the right to seek the
assistance of a coworker at an investigatory interview, not the right to
the actual assistance. It is the actual presence of the coworker, not the
request for one, that affords employees the ability to act in concert for
mutual aid or protection. In our view, the right to make such a request
is devoid of any substance without a corresponding right to have the
request granted.
ees—whether unionized or not—to act in concert for mu-
tual aid or protection. Further, as noted above, the right to
have a coworker present at the investigatory interview
affords unrepresented employees the opportunity to act in
concert to prevent a practice of unjust punishment.11
While an employer is generally free to deal with employ-
ees individually in the absence of union representation, an
employer may not mask the obstruction of employee ef-
forts to exercise Section 7 rights by asserting a right to
deal on an individual basis. See generally, Ontario Knife
Co. v. NLRB, 637 F.2d 840, 844-850 (2d Cir. 1980).
Member Brame contends that, by granting a nonunion-
ized employee the right to have a coworker present in an
investigatory interview, we are forcing the employer to
“deal with” the equivalent of a labor organization, and that
this conflicts with the exclusivity principle embodied in
Section 9(a) of the Act. This contention was squarely ad-
dressed and soundly rejected by the Third Circuit Court of
Appeals in Slaughter v. NLRB, 794 F.2d 120 (1986). “The
entire argument,” the court said, “rests upon a non sequi-
tur.” Id. at 127.
[T]he system of exclusive representation . . . which [it
is claimed] . . . would be derogated from by the exten-
sion of Weinarten to the unorganized, is expressly one
of collective bargaining, not of dealing. Accordingly,
if, as the Supreme Court held, the employer has no
statutory duty to bargain with the Weingarten repre-
sentative, the function of that representative in the un-
organized setting cannot be in derogation of the ex-
clusivity principle or any other important statutory
policy. Id. at 128.
In other words, even assuming that the role of an em-
ployee representative in an investigatory interview is
equivalent to “dealing with” the employer, the argument
advanced by Member Brame is irrelevant. “Dealing” is not
equivalent to “collective bargaining,” and the employer is
not required to “bargain collectively” with the Weingarten
representative. As the Third Circuit held, the Section 9(a)
exclusivity principle does not limit the Section 7 rights of
11 Member Hurtgen asserts that our holding today alters the balance
between an employee’s interest in assistance and “an employer’s inter-
est in having an unfettered investigation.” He fails to state, however,
how the presence of such a representative would impair the ability to
have an “unfettered investigation.” In our view, such speculation does
not warrant depriving employees of the opportunity to act for mutual
aid or protection in these circumstances.
Member Brame asks why nonunionized employees should be enti-
tled to the presence of a coworker at an investigatory interview when
nonunionized employees are not entitled to the presence of a coworker
at meetings to discuss other issues. The answer to this question, of
course, is that the principles set forth in the Supreme Court’s Wein-
gargten decision speak only to this specific right. Member Brame’s
speculation about other circumstances involving nonunionized employ-
ees is not encompassed within the Weingargten rationale, and is not
before us today. Thus, there is no merit to his assertion that our deci-
sion today has implications beyond the specific rule enunciated here.
In fact, our holding has no greater or less applicability than did the
Board’s prior holding in Materials Research.
EPILEPSY FOUNDATION OF NORTHEAST OHIO 679
nonunionized employees. In any event, if Member Brame
insists that we are forcing a nonunionized employer to deal
with the equivalent of a labor organization, he must also
believe that an employer would violate Section 8(a)(2) of
the Act by voluntarily allowing an employee to have a
coworker present during the investigatory interview. We
find this logic to be strained. More important, it misses the
point, discussed above, that an employer is completely free
to forego the investigatory interview and pursue other
means of resolving the matter. Thus, contrary to Member
Brame’s assertion, there is no obligation to deal with an
employee representative of nonunionized employees.
We also find that the concerns raised by the Board in
Dupont do not warrant allowing an employer to prohibit
the exercise of Weingarten rights in nonunionized work-
places. Specifically, we take issue with Dupont’s reliance
on the notions that the coworker has “no obligation” to
represent the interests of fellow employees, and that the
nonunionized coworker is less likely to have the skills
necessary to provide representation comparable to that
provided by a shop steward or some other union represen-
tative. The notion that employees in such circumstances
would not be motivated to act in the interests of their fel-
low workers, or that employees might lack the abilities to
offer constructive assistance to the interviewed employee,
is wholly speculative.12 It also misses the point that the
employee is free to choose whether to request or forego
representation. What is important is the availability of the
option. Moreover, Section 7 rights do not turn on either
the skills or the motives of the employee’s representative.
Thus, these supposed concerns do not legitimately warrant
foreclosing employees from the opportunity to avail them-
selves of the protections of the Act.
We also cannot agree with the statement in Dupont that
extending Weingarten rights to the nonunion workplace
will actually work to the detriment of employees by en-
couraging employers to forego the investigatory interview
and, thus, leave the aggrieved employee without an oppor-

Id. at 611–
12 Indeed, Member Brame’s dissent relies heavily on such specula-
tion. He speculates that the nonunionized coworker would be more
hostile to the employer, less likely to have the same incentives to safe-
guard the wider interests of fellow employees, and unlikely to be of any
assistance to the employer. As mentioned above, such speculation
cannot serve as a legitimate basis for depriving employees of the right
to act in concert for mutual aid and protection. The likelihood that any
particular concerted activity will ultimately achieve its intended result
is not the controlling consideration in determining whether that activity
is protected by Sec. 7 of the Act. What is important is that employees
are afforded the opportunity to “engage in concerted activities for mu-
tual aid or protection.” To that end, we find that Member Brame’s
emphasis on the notion that a coworker representative may not effec-
tively serve the employer’s interests reveals a disproportionate focus on
the employer’s interests at the expense of denying employees their right
and opportunity to engage in Sec. 7 activity.
Further, we disagree with Member Brame’s assertion that our refusal
to engage in similar speculation “flies in the face of Weingarten itself.”
Although the Court mentioned that a knowledgeable union representa-
tive “could” be of assistance to the employer, it did not limit this right
to circumstances where the representative might be of such assistance.
tunity to tell his or her side of the story. 289 NLRB at
630. This too is based wholly on speculation, and assumes
the worst in employer motives. In addition, such rationale
ignores the fact that employees are not obligated to request
the presence of a Weingarten representative, and—as in
the unionized workplace—can freely evaluate the strategic
merits of any particular course of action in this regard.
Finally, we find no force in Member Hurtgen’s conten-
tion that affording Weingarten rights to nonunionized em-
ployees places an “unknown trip wire” on employers who
are legitimately pursuing investigations of employee con-
duct. Our colleague speculates that employers in nonun-
ionized settings will be completely unaware of an em-
ployee’s right to a Weingarten representative. We do not
agree with his speculation. In any event, we fail to under-
stand how an employer’s ignorance of employee rights
provides a justification for denying those rights to employ-
ees.
In sum, we hold today that the rule enunciated in Wein-
garten applies to employees not represented by a union as
well as to those that are. We overrule the Board’s decision
in Dupont and return to the standard set forth in Materials
Research Corp. In addition, we also shall apply the rule
enunciated today to the facts of this case and find that the
Respondent violated Section 8(a)(1) of the Act by termi-
nating Borgs for insisting on having his coworker, Hasan,
present at an investigatory interview. Such application is
warranted in view of the well-settled retroactivity doctrine.
As the court stated in NLRB v. Bufco Corp., 899 F.2d 608
(7th Cir. 1990):
Generally, a decision which changes existing law or
policy is given retroactive effect unless retroactive
application would cause “manifest injustice.” NLRB
v. Affiliated Midwest Hospital, 789 F.2d 524 (7th Cir.
1986) (quoting NLRB v. Lyon & Ryan Ford, Inc., 647
F.2d 745, 757 (7th Cir. 1981) [*612] (citing Chevron
Oil Co. v. Huson, 404 U.S. 97, 92 S. Ct. 349, 30 L.
Ed. 2d 296 (1971)). In determining whether manifest
injustice is caused by the retroactive application of a
Board rule we consider the following: “the reliance
of the parties on pre-existing law, the effect of
retroactivity on accomplishing the purpose of the law;
and any injustice arising from retroactive
application.” NLRB v. Chicago Marine Containers,
Inc., 745 F.2d 493, 499 (7th Cir. 1984).
612. We find that the application of the Weingarten rule in
this case will not work a manifest injustice. First, there is
no evidence in the record even remotely suggesting that
the Respondent was relying on the state of Board law
when it decided to take action against Borgs. Second,
applying the rule in this proceeding serves to correct ef-
fects of the imposition of discipline on an employee for
availing himself of the right to engage in protected activ-
ity, and thus, serves the purpose of promoting the right of
employees to engage in concerted activity for mutual aid
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 680
and protection. Indeed, the purposes of the Act are not
served by subjecting Borgs to the continued consequences
of his discharge. Finally, we see no great injustice to the
Respondent in finding a violation here and requiring the
reinstatement of Borgs, particularly in view of the 8(a)(1)
findings by the judge that have not been excepted to,13 as
well as those discussed infra, which demonstrate that the
Respondent was not receptive to the right of its employees
to engage in protected concerted activity.
Accordingly, for all these reasons, we find that by dis-
charging Arnis Borgs for demanding that a coworker ac-
company him at an investigatory interview, the Respon-
dent violated Section 8(a)(1) of the Act as alleged.14
The Reprimand and Discharge of Ashraful Hasan
As discussed above, Hasan worked as a transition spe-
cialist for the Respondent’s school-to-work transition pro-
ject. The record shows that, beginning around August
1995 Hasan engaged in concerted activity together with
Borgs. From August through December 1995 Hasan and
Borgs organized and engaged in a brown bag lunch pro-
gram whereby employees would get together to discuss
matters of mutual concern. Further, in November 1995
Hasan and Borgs started an ethics committee which gave
employees an opportunity to address problems concerning
employee relations and delivery of service to clients. Two
meetings of the ethics committee were held in November
1995, and minutes of the meetings were posted at the Re-
spondent’s office.
In addition, sometime prior to October 5, 1995, Hasan
reviewed his personnel file and discovered a memo from
Berger, dated June 7, 1995, referencing an earlier misun-
derstanding Hasan and Borgs had with Berger concerning
the hiring of an interpreter without following the Respon-
dent’s subcontracting procedure. Although Hasan and
Borgs believed that the misunderstanding surrounding this
incident had been resolved to everyone’s satisfaction, the
memo stated that Hasan and Borgs had been given verbal
warnings for their actions concerning this incident. On
October 5, 1995, Hasan wrote a memo to Berger in which
he complained about the warnings in the personnel files

13 In addition to the findings discussed supra at fn. 5, there were no
exceptions to the judge’s finding that the Respondent violated Sec.
8(a)(1) by promulgating a rule prohibiting employees from discussing
wage information with other employees.
14 Because we find that the Respondent unlawfully discharged Borgs
for attempting to avail himself of the right to have a coworker accom-
pany him at an investigatory interview, we find it unnecessary to pass
on the General Counsel’s contention that the Respondent’s discharge of
Borgs was unlawful even absent a return to the rule set forth in Materi-
als Research Corp.
Because we find that the reason for Borgs’ discharge was his refusal
to participate in an investigatory interview without the presence of a
coworker, the appropriate remedy is reinstatement with backpay.
Safeway Stores, Inc., 303 NLRB 989 (1991). Thus, the instant case is
distinguishable from Taracorp., Inc., 273 NLRB 221 (1984), and its
progeny, which hold that an employee denied his Weingarten rights is
not entitled to reinstatement and backpay if he has been discharged for
misconduct or any other nondiscriminatory reason.
and demanded an explanation. Hasan gave copies of the
memo to Borgs and Loehrke. Shortly thereafter, Berger,
with the assistance of Loehrke, sent a responding memo to
Hasan which criticized the insubordinate tone of Hasan’s
memo and accused Hasan of undermining Berger’s super-
vision of Borgs by sending a copy of the memo to him.
Also, as set forth above, Hasan—along with Borgs—
prepared the January 17 and 29 memos criticizing Ber-
ger’s supervision of them. As with Borgs, Hasan was di-
rected to meet with Loehrke and Berger on February 1.
Unlike Borgs, however, Hasan agreed to meet alone with
them. At this meeting, Loehrke expressed her displeasure
with the January 17 memo.15 Hasan responded by stating
that the memo was a needs assessment. Hasan was then
given a written warning, stating that the January 17 memo
constituted insubordination and that any further acts of
misconduct or insubordination by Hasan would result in
his immediate discharge.
Thereafter, about March 6 Berger gave Hasan a copy of
his evaluation. Hasan did not sign off on the evaluation,
and told Berger that he would be adding some comments
to the evaluation, as he had done on previous evaluations.
About March 13 or shortly thereafter, Berger presented
Hasan with written personal performance goals. As with
his evaluations, Hasan had some comments to add to the
performance goals, and consequently did not sign off on
the document upon receiving it from Berger.
On March 25 Hasan was called to Loehrke’s office
whereupon she advised him that he was terminated.16 On
March 29, Hasan was given a termination letter from Loe-
hrke explaining that over the past 9 months the Respon-
dent had raised concerns with Hasan about his conduct.
The letter further indicated that the more serious concerns
included Hasan’s continued refusal to accept supervision,
and Hasan’s various confrontations with other staff mem-
bers. The letter did not discuss or refer to any specific
incident, but stated that he was being terminated because
of his “demonstrated conduct.”
The judge found that the Respondent did not violate
Section 8(a)(1) of the Act by reprimanding and terminat-
ing Hasan. The judge began his analysis by finding no
evidence of animus towards Hasan’s involvement with the
brown bag lunch program and the ethics committee. The
judge further found that these events, as well as the Octo-
ber dispute concerning the memo in the personnel files,
although protected, were remote in time and unrelated to
the events leading to his discharge.
The judge next found that the January 17 memo to Ber-
ger from Hasan and Borgs, although concerted, was not
15 Hasan testified that Loehrke expressed her annoyance with the
January 29 memo. Loehrke testified, however, that she only referred to
the January 17 memo at the meeting. The judge did not resolve this
discrepancy in the testimony.
16 Hasan testified that he was given no reason for his termination at
the meeting. Loehrke’s notes state that she raised the failure to sign the
performance objectives at the meeting.
EPILEPSY FOUNDATION OF NORTHEAST OHIO 681
activity protected by the Act. Specifically, the judge re-
jected the assertion that the memo was a needs assessment,
and instead found it to be an attempt by Hasan and Borgs
to dismiss Berger as their supervisor on the project. The
judge also regarded the January 29 memo as nothing more
than an after-the-fact attempt at damage control. Thus, the
judge found the memo writing was not protected because
it failed to raise concerns about the quality of the project or
of Berger’s supervision. Accordingly, the judge found the
Respondent’s reprimand of Hasan for this conduct did not
violate Section 8(a)(1).
Finally, the judge noted that the record showed that
Hasan had been involved in several incidents having noth-
ing to do with protected activity, including the incidents
involving the hiring of the interpreter, his demands for
preferential clerical assistance, an incident in which Hasan
was accused of not showing sensitivity towards the parents
of an agency client, and Hasan’s failure to sign the Re-
spondent’s statement of performance objectives. In view
of these incidents, as well as the circumstances surround-
ing the January memos, the judge concluded that there was
no evidence to support an inference that animus towards
protected activity was a motivating factor in the Respon-
dent’s decision to discharge Hasan. Accordingly, the
judge found that the Respondent’s discharge of Hasan did
not violate Section 8(a)(1) of the Act.
We disagree with the judge’s finding that Hasan’s rep-
rimand and discharge were lawful. Applying the princi-
ples set forth in Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 800 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982), we find, contrary to the judge, that the General
Counsel has shown that Hasan’s protected activity was a
motivating factor in the Respondent’s decision to repri-
mand and thereafter terminate him, and that the Respon-
dent has failed to show that it would have taken this action
against Hasan even in the absence of his protected activity.
We find error with the judge’s primary finding with re-
spect to Hasan, i.e., that the January 17 memo by Hasan
and Borgs did not constitute protected concerted activity.
Specifically, we disagree with the finding that the memo
was not protected because it was an attempt to dismiss
Berger as their supervisor. Even assuming that was the
sole or primary purpose of the memo, such purpose does
not remove the conduct from the protections of the Act.
Indeed, the attempt by employees to cause the removal of
their supervisor is protected when “it is evident that [the
supervisor’s conduct] had an impact on employee working
conditions.” Caterpillar, Inc., 321 NLRB 1178, 1179
(1996), vacated as moot (March 19, 1998), citing Hoytuck
Corp., 285 NLRB 904 fn. 3 (1987). Clearly, Berger’s
supervisory duties had a significant impact on Hasan’s
terms and conditions of employment, as evidenced by the
warnings he received, his evaluations, and his ultimate
discharge.17
We also find, contrary to the judge, that the January 17
memo was inextricably intertwined with the January 29
memo, which also implicated terms and conditions of em-
ployment by its discussion of the problems they were hav-
ing with Berger. Thus, insofar as Loehrke and Berger had
read both memos by February 1, they fully understood that
the issues raised in the January 17 memo were not separate
from the concerns about Borgs and Hasan were being
treated by their supervisor as set forth in the subsequent
memo.18 Thus, the memo writing clearly was an attempt
by Hasan and Borgs to raise issues related to their condi-
tions of employment, and, consequently Loehrke’s repri-
mand of Hasan for engaging in this conduct violated Sec-
tion 8(a)(1) of the Act.19
We further find that, in view of our finding that Hasan’s
involvement in the January 17 memo constitutes protected
concerted activity, the Respondent’s termination of Hasan
was unlawful. Indeed, as noted above, the Respondent
placed Hasan on the verge of termination for his involve-
ment with the memo, as evidenced by the formal repri-
mand which included the warning that any other acts of
misconduct would result in his termination. Also, Hasan’s
termination letter referred to concerns the Respondent had
raised about Hasan’s conduct over the past 9 months, and
during this period Hasan had angered the Respondent by
protesting the written warnings placed into his and Borgs’

17 We find no merit to Member Hurtgen’s contention that the Janu-
ary 17 memo was unprotected because the General Counsel did not
establish that the memo related to supervisory conduct affecting the
employees. To the extent that the Respondent could have initially
harbored some doubt as to whether the memo was related to Berger’s
impact on Hasan and Borgs’ terms and conditions of employment, any
such doubt was clearly laid to rest by the memo Loehrke received on
January 29. As noted above, that memo elaborated on the assertion
made in the January 17 memo, and specifically referenced issues such
as Berger’s use of threatening and abusive language towards employ-
ees, Berger requiring Hasan to personally pay for his clients’ medical
services, critical allegations that Berger placed in Hasan’s personnel
file, and Berger’s critical comments about Hasan’s salary negotiations.
Thus, neither Lutheran Social Services, 250 NLRB 35 (1980), nor
Hoytuck Corp., supra, cited by our colleague, supports his position,
because the Board held in both cases that such activity is protected
when the supervisor’s conduct relates to the employees’ conditions of
employment.
18 In agreeing with the judge’s finding that the January 29 memo was
an after-the-fact attempt at damage control, Member Brame contends—
at least implicitly—that the January 17 memo must have related to
something other than supervisory conduct affecting the employees.
There is no evidence in support of this contention. To the contrary, the
fact that the Respondent took no action until after receiving the January
29 memo reasonably suggests that, at the time it disciplined Hasan on
February 1, the Respondent understood that both memos related to
supervisory conduct affecting the employees. Consequently, we find
that the cases cited by Member Brame in his dissent do not support a
finding that Hasan’s discharge was lawful.
19 Because the memos of January 17 and 29 are inextricably inter-
twined, we find it unnecessary to resolve the discrepancy in the testi-
mony as to which of the memos Loehrke expressed her annoyance with
at the February 1 meeting with Hasan.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 682
personnel files. We agree with the judge that this conduct
by Hasan constituted protected activity. Thus, it is clear
that the Respondent’s animus towards Hasan’s protected
activity was a motivating factor in its decision to terminate
him. Accordingly, we find that the General Counsel has
established a prima facie case under Wright Line that
Hasan’s discharge was unlawful.
We further find that the Respondent has failed to sustain
its burden under Wright Line of showing that it would
have discharged Hasan even absent his protected con-
certed activity. The Respondent contends that it dis-
charged Hasan because he refused to sign the statement of
personal project objectives Berger gave him. It is appar-
ent, though, that the discharge was not solely due to the
failure to sign the performance objectives, but rather was
linked to the Respondent’s anger at Hasan for his pro-
tected activity, especially his involvement with the January
17 memo. Indeed, Loehrke testified that the failure to sign
was the “final straw” for her. Further, as noted above,
Hasan was warned that any future acts of misconduct
would result in his discharge, thus, further suggesting that
the failure to sign would not, by itself, warrant discharge.
Moreover, we note that Hasan’s termination letter made no
reference to the failure to sign the performance objectives,
thus, casting further doubt as to whether the Respondent
was actually discharging him for that reason, as it con-
tends. In view of these facts, we are unable to conclude
that the Respondent would have discharged Hasan in the
absence of his protected activity, and accordingly find that
its discharge of Hasan violated Section 8(a)(1) of the Act.
ORDER
The Respondent, Epilepsy Foundation of Northeast
Ohio, Cleveland, Ohio, its officers, agents, successors and
assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees concerning con-
certed activity protected by the Act.
(b) Issuing disciplinary warnings to employees for dis-
closing 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 dis-
closing or discussing their wages with other employees.
(e) Issuing disciplinary warnings to employees for en-
gaging in protected concerted activities.
(f) Discharging employees for engaging in protected
concerted activities.
(g) In any like or related manner interfering with, re-
straining, 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 dis-
cussing their wages with other employees.
(b) Within 14 days from the date of this Order, offer
Arnis Borgs and Ashraful Hasan full reinstatement to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their sen-
iority or any other rights or privileges previously enjoyed.
(c) Make Arnis Borgs and Ashraful Hasan whole for
any loss of earnings and other benefits suffered as a result
of the discrimination against them, in the manner pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest computed in the manner set forth in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful warnings and
discharges, and within 3 days thereafter notify the em-
ployees in writing that this has been done and that the
warnings and discharges will not be used against them in
any way.
(e) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Within 14 days after service by the Region, post at its
facility in Cleveland, Ohio, copies of the attached notice
marked “Appendix.”20 Copies of the notice, on forms
provided by the Regional Director for Region 8, after be-
ing signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately on 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, de-
faced, or covered by any other material. In the event that,
during the pendency of these proceedings, the Respondent
has gone out of business or closed down the facility in-
volved in these proceedings, the Respondent shall dupli-
cate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by
the Respondent at any time since December 28, 1995.
(g) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsi-
ble official on a form provided by the region attesting to
the steps that the Respondent has taken to comply.

MEMBER HURTGEN, dissenting in part.
In E. I. DuPont & Co., 289 NLRB 627 (1988), the
Board held that Weingarten1 rights do not apply to em-
ployees 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 in-

20 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
1 420 U.S. 251 (1975).
EPILEPSY FOUNDATION OF NORTHEAST OHIO 683
dustrial strife. Despite all of this, my colleagues now
abruptly reverse precedent and apply Weingarten to non-
union facilities. By so doing, they take away from a non-
union 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 compel-
ling 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, Sec-
tion 7, at most, protects nonunion employees in their seek-
ing 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 insubor-
dinate and can be disciplined for such insubordination.
To the extent that there are compelling considerations,
they point toward preserving the status quo. These con-
siderations 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 em-
ployee 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 dis-
charge 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 insubordina-
tion if he refuses? In Dupont, those questions were an-
swered 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 union-
ized setting, the employee is entitled to union representa-
tion 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

2 The term “interview,” as used here, is used in its Weingarten,
sense, i.e., an investigatory interview of an employee in circumstances
which reasonably lead the employee to believe that discipline might
result.
make certain that the employer does not initiate or
continue a practice of imposing punishment unjustly.
Clearly, in a unionized setting, the “union representa-
tive” 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 Wein-
garten did not envisage rights to representation in a non-
union setting.
Further, the differences between a unionized workforce
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 em-
ployment-related matter. By contrast, in a nonunion set-
ting, 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 non-
union 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 Weingar-
ten, the presence of a union representative in a unionized
context may actually help the interview process. The un-
ion representative knows the discipline provisions of the
collective-bargaining agreement, and can offer those rele-
vant insights at the interview. Also, the union representa-
tive 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 griev-
ance-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 oper-
ates under a union contract containing discipline provi-
sions and grievance-arbitration procedures.
My colleagues have altered the delicate balance
achieved in Weingarten. That balance involves the “diffi-
cult 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 mis-
conduct.
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 represen-
tative, and the industrial practice under which many col-
lective-bargaining agreements contain “Weingarte—type”
provisions. Of course, none of these factors is present in a
3 See Linden Lumber v. NLRB, 419 U.S. 301 (1974); and J. I. Case v.
NLRB, 321 U.S. 332 (1944).
4 Weingarten at 267.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 684
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 inter-
view. 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 inter-
view is more helpful than a noninterview (in terms of as-
certaining 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 un-
fair 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 in-
sisted 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 dis-
charged 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

5 I do not pass on the issue of whether the Act compels the result that
I have reached. See Slaughter v. NLRB, 876 F.2d 11 (1986) (the court
said that Board erroneously assumed that the Act mandated this result).
Rather, I simply conclude that the policies of the Act strongly militate
in favor of that result.
6 NLRB v. Bufco Corp., 899 F.2d 608 (7th Cir. 1990).
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 estab-
lish, 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 su-
pervisor 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 an-
other 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 Respon-
dent, 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.

7 See Lutheran Social Services, 250 NLRB 35, 41 (1980).
8 With respect to Caterpillar, 321 NLRB 1178, 1179 (1996), I do not
agree with the decision in that case, and I note that the decision was
vacated.
EPILEPSY FOUNDATION OF NORTHEAST OHIO 685
MEMBER BRAME, dissenting in part.1
I.
A. Introduction
This case presents the Board with yet another opportu-
nity to consider whether the right of unionized employees
to have a union representative present, on request, at in-
vestigatory 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 unrepre-
sented employees.4 My colleagues in the majority have
decided to do just that. The National Labor Relations Act
(the NLRA or the Act), however, does not provide for
such protection for nonunionized employees, and to inter-
pret 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

1 I join my colleagues in affirming the finding of 8(a)(1) violations
to which no exceptions were filed, including violations based on the
Respondent’s coercive interrogation of employee Arnis Borgs, its issu-
ing of disciplinary warnings and threats to Borgs for his discussion of
wage information with other employees, and its promulgation of a rule
that prohibited employees from discussing wage information with other
employees.
2 This right in the unionized setting was approved by the United
States Supreme Court in NLRB v. J. Weingarten, Inc., 420 U.S. 251
(1975). There, the Court defined an “investigatory interview” as an
interview with the employer that the employee reasonably believes may
result in his or her discipline. Id. at 256 (citing Quality Mfg. Co., 195
NLRB 197 (1972); and Mobil Oil Corp., 196 NLRB 1052 (1972)).
3 E. I. DuPont & Co., 289 NLRB 627 (1988), review denied sub
nom. Slaughter v. NLRB, 876 F.2d 11 (3d Cir. 1989).
4 Materials Research Corp., 262 NLRB 1010 (1982).
5 Sec. 8(a)(1) makes it an unfair labor practice for an employer “to
interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 7.” 29 U.S.C. Sec. 158(a)(1). Sec. 7 provides:
Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, and shall also have the right to refrain
from any or all of such activities except to the extent that such
right may be affected by an agreement requiring membership in a
labor organization as a condition of employment as authorized in
section 8(a)(3) of this title.
29 U.S.C. Sec. 157.
that such unrepresented employees are not entitled to a
special right of representation in this one situation. Forc-
ing 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 incor-
rect 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 on request does not mean that
unrepresented employees enjoy the same right. As ex-
plained 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 em-
ployees 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. Be-
cause 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 sec-
ond discharge resulted from an employee’s attempt to re-
move 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 super-
visor is not protected activity, I must dissent from my col-
leagues’ 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) se-
lected the Respondent, an EFA affiliate, to conduct a 3-
year project related to school-to-work transitions for teen-
agers with epilepsy (the project). The respondent’s execu-
tive director, Christine Loehrke, was responsible for over-
seeing the project, and Respondent’s director of vocational
services, Rick Berger, acted as the project’s on-site super-
visor. The two employees at issue in this case are Ashra-
ful Hasan, a full-time transition specialist on the project,
and Arnis Borgs, an employment specialist.
During 1995 and 1996 Hasan and Borgs engaged in cer-
tain conduct that is at issue in this case. First, between
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 686
August and December 1995, they took part in a brown bag
lunch program through which employees met approxi-
mately 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 em-
ployee relations and client-service delivery.
On June 7, 1995, Supervisor Berger wrote a memoran-
dum 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 “insubor-
dinate 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. On 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

6 The precise details regarding this incident are not relevant to the is-
sues in this case.
7 The memo stated:
Mr. Jim Troxell [an EFA representative monitoring the pro-
ject] and Dr. Bob Fraser [responsible for providing data process-
ing and analytical services to the project] have continued to pro-
vide supervisory input pertaining to service delivery and the re-
search component of the study. During the past several months,
Ms. Christine Loehrke has also provided input and assistance to
the NIDRR [National Institute of Disability and Rehabilitation
Research, responsible for the research grant] School-to-Work Pro-
ject.
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 re-
gard.
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 administra-
tion. 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 employ-
ment. 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 ac-
cept[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 un-
happiness with the January 17 memo,8 and Hasan told her
that the memo was a needs assessment. Hasan also re-
ceived 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 Loe-
hrke 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 9 months, specifi-
cally his refusal to accept supervision on the project and
his confrontations with other staff members.
The General Counsel asserts that the Respondent dis-
charged Borgs and Hasan because they had engaged in
concerted activities and that the Respondent thereby vio-
lated Section 8(a)(1) of the Act. The judge indeed found
that the Respondent did in fact discharge Borgs in retalia-
8 As my colleagues note, there is some confusion in the record as to
whether Loehrke expressed her displeasure with the January 17 memo
or both that memo and the January 29 memo at this meeting with Hasan
and Berger.
9 Although Hasan testified that he was given no reason at this time
for his termination, Loehrke’s notes indicate that she did raise with him
an incident that occurred earlier in March in which Hasan failed to sign
performance objectives given to him by Berger. Hasan apparently did
not sign off on the objectives because he wanted to add his own hand-
written comments to them.
EPILEPSY FOUNDATION OF NORTHEAST OHIO 687
tion 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 pro-
tected, concerted activity, and thus, that discipline result-
ing from that memo was not a violation. Second, the
judge determined that Borgs’s refusal to meet with Loe-
hrke and Berger on request constituted insubordination for
which he properly could be disciplined under the Act de-
spite 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 Respon-
dent bore Hasan any animus based on his activities relat-
ing 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 supervi-
sion 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 con-
trol.”
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 re-
quest 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 co-
erced him in the exercise thereof, and thus, violated Sec-
tion 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 repre-
sentation 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 unrepre-
sented employees, I cannot join my colleagues’ decision in
this regard.

10 The activities that the judge found to be protected and concerted
involved attempts by Borgs to convince the Respondent to increase the
amount that it paid employees for mileage reimbursements and Borgs’s
discussions with other employees regarding salaries.
11 For the full text of Sec. 7, see supra fn. 5.
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 inter-
twined” 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 employ-
ment. 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 inter-
views initially arose in cases involving unionized work-
forces. 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 allega-
tions that she had taken money.13 During the course of the
questioning, the employee several times asked the man-
ager 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 “con-
certed activities for . . . mutual aid or protection” lan-
guage.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 on request at an investigatory inter-
view “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 representa-
tion would arise only when an employee actually requests
representation19 and only when the employee has a reason-
able belief that the investigation will result in some sort of
12 420 U.S. 251 (1975).
13 Id. at 254.
14 Id.
15 Id. at 256 (citing Quality Mfg. Co., 195 NLRB 197 (1972); and
Mobil Oil Corp., 196 NLRB 1052 (1972)).
16 Id. at 260.
17 Id. at 256 (citing Quality Mfg Co., 195 NLRB 197 (1972); and
Mobil Oil Corp., 196 NLRB 1052 (1972)).
18 Id.
19 Id. at 257.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 688
disciplinary action.20 The Court then explained the em-
ployer safeguards that the Board had built into the repre-
sentational 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 pre-
sent 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 investi-
gatory 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 ex-
plained, the union representative from whom the individ-
ual employee seeks aid or protection is
safeguarding not only the particular employee’s inter-
est, but also the interests of the entire bargaining unit
by exercising vigilance to make certain that the em-
ployer does not initiate or continue a practice of im-
posing 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 im-
portant purposes—eliminating the “inequality of bargain-
ing power between employees . . . and employers.”25 Ad-
ditionally, the Court emphasized that recognizing this right
at the time of an investigatory interview can benefit the

20 Id. at 257–258.
21 Id. at 258.
22 Id. at 258–260.
23 Id. at 260.
24 Id. at 260–261 (footnote omitted). See also id. at 261 fn. 6 where
the Court quoted the following from a law review article:
The quantum of proof that the employer considers sufficient to
support disciplinary action is of concern to the entire bargaining
unit. A slow accretion of custom and practice may come to con-
trol the handling of disciplinary disputes. If, for example, the
employer adopts a practice of considering [a] foreman’s unsub-
stantiated statements sufficient to support disciplinary action, em-
ployee protection against unwarranted punishment is affected.
The presence of a union steward allows protection of this interest
by the bargaining representative.
Id. (quoting Comment, Union Presence in Disciplinary Meetings, 41
U. Chi. L. Rev. 329, 338 (1974)).
25 Id. at 261–262 (quoting 29 U.S.C. Sec. 151).
employer as well as the employee, because “[a] knowl-
edgeable 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 permissi-
ble,” although perhaps not required, and that the Board
had “engage[d] in the ‘difficult and delicate responsibility’
of reconciling conflicting interests of labor and manage-
ment,” 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 ac-
cording 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 is-
sue of whether to extend the right approved in that case to
a situation like the one in the present case in which an em-
ployee in a nonunionized workplace requests representa-
tion by a coworker at an investigatory interview with his
or her employer. In 1982, the Board offered what ap-
peared 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 deci-
sion in Weingarten had referred only to union representa-
tives 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 em-
ployees should be accorded the same right as, for the most
part, Section 7 protections do not vary based on whether
26 Id. at 262–263.
27 Id. at 262–263 fn. 7 (quoting Independent Lock Co., 30 Lab. Arb.
744, 746 (1958); and Caterpillar Tractor Co., 44 Lab. Arb. 647, 651
(1965)).
28 Id. at 266–267 (quoting NLRB v. Truck Drivers, 353 U.S. 87, 96
(1957) (citations omitted)).
29 Id. at 267 (quoting Chevron Chemical Co., 60 Lab. Arb. 1066,
1071 (1973)).
30 262 NLRB 1010 (1982).
31 Id. at 1012.
EPILEPSY FOUNDATION OF NORTHEAST OHIO 689
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 representa-
tional right would exist in a nonunionized setting as well.36
The Board then held that Weingarten “compels” a find-
ing that unrepresented employees have a right to have a
coworker present at an investigatory interview.37 In reach-
ing 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 per-
ceived imbalance of economic power between labor
and management.”38
The majority then went on to explain that these considera-
tions come into play regardless of whether an employee is
represented by a union and that unrepresented employees

32 Id. The Board also noted that in its pre-Weingarten decisions in
Quality Mfg. Co., 195 NLRB 197 (1972), and Mobil Oil Corp., 196
NLRB 1052 (1972), in which the Board had recognized a right to union
representation in investigatory interviews, it had also grounded the right
in an employee’s right under Sec. 7 to engage in concerted activity for
mutual aid or protection. Materials Research, 262 NLRB at 1013.
33 234 NLRB 1309 (1978), remanded by 592 F.2d 94 (2d Cir. 1979),
supplemented by 241 NLRB 348 (1979), enfd. 600 F.2d 3 (2d Cir.
1979).
34 The situation at issue in Glomac Plastics fell somewhere between
Weingarten and the circumstances of the present case. In Glomac
Plastics, the employer refused an employee’s request to have present at
an investigatory interview a union negotiating committee member and
disciplined the employee for refusing to take part in the interview with-
out this representative. Id. at 1309. The situation was different from
that of Weingarten, and yet was not the equivalent of the situation in
Materials Research and the present case, because there was merely
some controversy as to whether the workplace employees were in fact
represented by a union. As the Glomac Plastics Board explained, the
employer had refused to bargain in good faith with the union and had
thereby deprived its employees of the benefits of union representation.
Id. at 1310. Thus, although the employees in Glomac Plastics were not
unrepresented to the extent of those in Materials Research or the pre-
sent case, they were not enjoying the full benefits of the representative
that they had chosen. Because of this circumstance, the Glomac Plas-
tics Board did employ certain language in its decision that apparently
relates to the situation of nonunionized employees; the Materials Re-
search majority, thus, drew on this language in making its argument
that nonunionized employees should enjoy a right equivalent to the
Weingarten right of unionized employees.
35 Id. (quoting Glomac Plastics, 234 NLRB at 1311).
36 Id. (citing Glomac Plastics, 234 NLRB at 1311, and quoting
Weingarten, 420 U.S. at 270, fn.1 (Powell, J., dissenting)).
37 Id. at 1014.
38 Weingarten, 420 U.S. at 262 (quoting American Ship Building Co.
v. NLRB, 380 U.S. 300, 316 (1965)), quoted in Materials Research, 262
NLRB at 1014.
may have an even greater need for support during an in-
vestigatory interview.39 The majority explained that un-
represented employees are without the safeguards of a
collective-bargaining agreement, which checks an em-
ployer’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 major-
ity, 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 rep-
resentative 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 certi-
fied, an employer, under Section 9(a) of the Act, is re-
quired 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 em-
ployees to representation at investigatory interviews, had
recognized that an employer’s refusal to allow an em-
ployee’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 relation-
ship 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 cen-
39 Materials Research, 262 NLRB at 1014 (citing Glomac Plastics,
234 NLRB at 1311). For an explanation of how Chairman Van de
Water, in dissent, refuted the majority’s use of this Supreme Court
language, see infra note 45.
40 Id.
41 Id.
42 Id. at 1016 (citing Linden Lumber Division v. NLRB, 419 U.S. 301
(1974); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937); and
J. I. Case Co. v. NLRB, 321 U.S. 332 (1944)).
43 Id. at 1016–1017. As Chairman Van de Water explained, once
unit employees have designated a bargaining representative and that
representative has been recognized or certified, the employer is obli-
gated under Sec. 9(a) to deal with the union as its employees’ exclusive
representative. Id. Under Sec. 8(d), the employer must “confer [with
the union] in good faith with respect to wages, hours, and other terms
and conditions of employment.” Id. at 1017 (quoting 29 U.S.C. Sec.
158(d)). Additionally, it is an unfair labor practice under Sec. 8(a)(5)
for the employer to refuse to deal with the union about these Sec. 8(d)
matters. Id. In fact, once such an exclusive representative has been
recognized or certified, the employer cannot deal individually with its
employees but must instead, under Secs. 8(a)(5), 8(d), and 9(a), deal
with them collectively through their union with regard to their terms
and conditions of employment. Id.
44 Id.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 690
tered on the existence of a collective-bargaining relation-
ship.45
Chairman Van de Water went on to explain the reper-
cussions that would result from finding a right to represen-
tation 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 situa-
tion as someone who could “make proposals and sugges-
tions 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 em-
ployer.”47 Chairman Van de Water felt that, by extending
this role to a nonunionized employee’s coworker, the Ma-
terials Research majority had succeeded in creating a hy-
brid 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

45 Id. at 1018 (quoting Weingarten, 420 U.S. at 261–262). At this
point in his dissent, Chairman Van de Water also criticized the major-
ity’s attempt to equate the situations of represented and unrepresented
employees by asserting that concerns expressed by the Weingarten
Court with regard to represented employees applied equally or with
even more force to unrepresented employees. As explained supra, the
Materials Research majority quoted language from Weingarten ex-
pressing the Supreme Court’s concern that denying represented em-
ployees a right to have union representation at investigatory interviews
would “perpetuate[ ] the inequality the Act was designed to eliminate”
and would “bar[ ] recourse to the safeguards the Act provided ‘to re-
dress the perceived imbalance of economic power between labor and
management.’” Weingarten, 420 U.S. at 262 (quoting American Ship
Building Co. v. NLRB, 380 U.S. 300, 316 (1965)), quoted in Materials
Research, 262 NLRB at 1014. As explained, the Materials Research
majority insisted that these same concerns supported extending the
Weingarten right to unrepresented employees. 262 NLRB at 1014.
Chairman Van de Water, however, explained that the purpose of the
Act was not to improve employees’ positions through any means possi-
ble but instead was to give employees the ability to improve their own
positions through the selection of a collective-bargaining representa-
tive:
My colleagues rely on this language from the Weingarten decision,
asserting that the presence of a fellow employee at an investigatory in-
terview serves to enhance employees’ economic power vis-à-vis their
employer. While they may be correct that their decision does improve
the employees’ position in the balance of power, the simple fact re-
mains that Congress has declared that the means by which employees
are to redress such economic imbalance is utilization of the Act’s
processes for majority selection of an exclusive collective-bargaining
representative. No doubt, this Board could construct a myriad of rules
which would enhance the position of employees. To do so, however,
it would have to ignore the mandate of Congress as well as the Su-
preme Court’s admonition that “the Act’s provisions are not indefi-
nitely elastic, content-free forms to be shaped in whatever manner the
Board might think best conforms to the proper balance of bargaining
power.”
Id. at 1018 fn. 37 (quoting American Ship Building Co. v. NLRB,
380 U.S. at 310.
46 Id. at 1019 (citing Southwestern Bell Telephone Co., 251 NLRB
612 (1980)).
47 Id.
employer which exists without reference to other applica-
ble provisions of the Act; one that exercises its powers
without being subjected, in any way, to the responsibilities
imposed on other entities that exercise such powers; and it
is a relationship to which the employer must render defer-
ence without being provided the normal safeguards which
would otherwise be available.48
Chairman Van de Water next discussed how the Mate-
rials 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 exam-
ple, when employees have selected a representative, they
are no longer free to deal with their employer on an indi-
vidual 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
48 Id.
49 Id.
50 Id. at 1020. In support of his assertion that the scope of Sec. 7 rights
is affected by whether employees are represented, specifically in that
unions may permissibly waive certain Sec. 7 rights, Chairman Van de
Water pointed explicitly to the fact that when a union becomes the exclu-
sive representative of a unit of employees, it is permitted to waive those
employees’ right to strike. Id. See Metropolitan Edison Co. v. NLRB,
460 U.S. 693, 705 (1983) (“This Court long had recognized that a union
may waive a member’s statutorily protected rights, including ‘his right to
strike during the contract term, and his right to refuse to cross a picket
line.”) (quoting NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 180
(1967)); and Plumbers & Pipefitters Local 520 v. NLRB, 955 F.2d 744,
751 (D.C. Cir. 1992) (“[M]any of the rights guaranteed to employees by
the NLRA may be altered or waived by a union in collective bargaining,
so long as the union fulfills its duty of fair representation and takes no
action that would impair the employees’ choice of their bargaining repre-
sentative.”) (citing Metropolitan Edison, 460 U.S. at 705–707).
51 Id.
EPILEPSY FOUNDATION OF NORTHEAST OHIO 691
not be anathema to other applications of Section 7. Fur-
thermore, 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 major-
ity’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 em-
ployer to submit workplace changes to an employee ma-
jority vote.53 This conduct would clearly be in pursuit of
mutual aid or protection against the possibility of “arbi-
trary 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 in-
terview are seeking mutual aid and protection and an em-
ployer would violate the Act by punishing an employee for
seeking that protection.”56 However, according to Chair-
man 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 rep-
resentation. Member Hunter first noted, along the same
lines as Chairman Van de Water, that the Weingarten de-
cision 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. Mem-
ber Hunter explained that, while the Supreme Court in
Weingarten had focused on “the important role a knowl-
edgeable 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. In-
stead,
the employer in the nonunion situation is likely to find
itself confronted by a “representative” who has few or

52 Id. (citing Emporium Capwell Co. v. Western Addition Community
Organization, 420 U.S. 50 (1975) for the proposition that “not all con-
certed actions for mutual aid and protection are protected by our Act”).
53 Id.
54 Id.
55 Id.
56 Id. (emphasis in original).
57 Id. at 1020–1021.
58 Id. at 1021.
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 emo-
tionally in the interview.59
Despite these two vigorous dissents, the Materials Re-
search 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 3 years after its decision in Materials Research, the
Board overruled that case and found that unrepresented
employees do not enjoy a Weingarten right to representa-
tion. In Sears, Roebuck & Co.,60 the Board “fully en-
dorse[d] former Chairman Van de Water’s dissenting
opinion” in Materials Research.61 The Sears Board ex-
plained 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 em-
ployee 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 “fun-
damentally 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 ex-
plained that reliance on Weingarten’s basis in Section 7
was misplaced because “[t]he scope of Section 7’s protec-
tions may vary depending on whether employees are rep-
resented or unrepresented.”66 Additionally, the Sears
59 Id. at 1021.
60 274 NLRB 230 (1985).
61 Id.
62 Id. at 230–231 (emphasis in original).
63 Id. at 231.
64 Id. (citing Linden Lumber v. NLRB, 419 U.S. 301 (1974); J. I.
Case Co. v. NLRB, 321 U.S. 332 (1944); and NLRB v. Jones & Laugh-
lin, 301 U.S. 1 (1937)).
65 Id.
66 Id. Here, the Sears Board, like Chairman Van de Water in his Ma-
terials Research dissent, relied on Emporium Capwell in which union-
ized employees picketed in an attempt to force their employer to deal
with them rather than their union. Id. (citing Emporium Capwell, 420
U.S. 50 (1974)). The Supreme Court held that the discharges that re-
sulted were lawful because “the employees’ actions contravened the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 692
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 repre-
sentative, 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 em-
ployer, and ‘dealing with’ an employer is a primary in-
dicium 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 rep-
resentative.”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, ex-
tending 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 “representa-
tion 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 exclu-

at
99 ).

exclusivity provisions of Section 9.” Id. The employees’ actions,
which were concerted, would have been protected under Sec. 7 if they
had not been represented by a union, but “their rights in a unionized
setting could not ‘be pursued at the expense of the orderly collective-
bargaining process contemplated by the NLRA.’” Id. (quoting Empo-
rium Capwell, 420 U.S. at 69). According to the Sears Board, the same
reasoning is applicable to the Weingarten question in a nonunionized
setting: “The scope of Section 7’s protections may vary depending on
whether employees are represented or unrepresented, and the Section 7
rights of one group cannot be mechanically transplanted to the other
group at the expense of important statutory policies.” Id.
67 Id.
68 Id. (emphasis in original).
69 Id. at 232 (citing Materials Research, 262 NLRB at 1016 fn. 30,
1019 fn. 40, and accompanying text (Chairman Van de Water, dissent-
ing)). The Board has more recently reaffirmed the notion that “dealing
with” is one of the primary factors indicative of labor-organization
status. See Polaroid Corp., 329 NLRB 424 (1999); and Electromation,
Inc., 309 NLRB 990, 994–995 (1992), enfd. 35 F.3d 1148 (7th Cir.
1994). Forcing an employer to meet with an employee representative
as well as the employee whose behavior is at issue and endowing that
representative with the right to speak and make proposals treads very
close to the line of forcing an employer to deal with a “labor organiza-
tion” that has not been certified or recognized as the exclusive
representative of the unit employees. See Polaroid, 329 NLRB No. 47
slip op. at 2 (“The Board has explained that ‘dealing with’ contem-
plated ‘a bilateral mechanism involving proposals from the employee
committee . . . , coupled with real or apparent consideration of those
proposals by management.’”) (quoting Electromation, 309 NLRB
5 fn. 2170 Id.
71 Id.
sive bargaining agent.72 Member Hunter went on to decry
the Materials Research majority’s “denigration” of “the
knowledge, skill, and experience which the union repre-
sentative 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 nonun-
ionized 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 participa-
tion 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 dis-
ciplinary 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 re-
duce the costs of nonfrivolous grievances. . . . [I]n the
unrepresented setting, there is an unlimited pool of
potential witnesses at these interviews since the em-
ployee can choose any coworker he likes. This
unlimited pool can hinder continuity and speedy in-
vestigations which the employer seeks.74
Because of these differences in the two settings, Member
Hunter concurred in the Sears majority’s decision to over-
turn 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 re-
72 Id. at 233–234.
73 Id. at 234.
74 Id.
75 289 NLRB 627 (1988), review denied sub nom. Slaughter v.
NLRB, 876 F.2d 11 (3d Cir. 1989). The procedural history of this case
is somewhat complicated. Initially, the Board affirmed the judge’s
determination that the employer had violated the Act by discharging an
employee for refusing to take part in an investigatory interview without
a coworker present. 262 NLRB 1028 (1982). The Third Circuit en-
forced the Board’s decision. 724 F.2d 1061 (3d Cir. 1983). The Re-
spondent then filed motions for panel rehearing and rehearing en banc,
and the Board requested that the court vacate its decision and remand to
the Board for further consideration. The court then granted panel re-
hearing, vacated its opinion, 724 F.2d 1061 (3d Cir. 1984), and re-
manded to the Board, 733 F.2d 296 (3d Cir. 1984). The Board pro-
ceeded to issue a supplemental decision in which it reversed the judge
and found, based on Sears, that the employer had not violated the Act.
274 NLRB 1104 (1985). Finally, the Third Circuit remanded the case
EPILEPSY FOUNDATION OF NORTHEAST OHIO 693
mand 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 con-
clude that unrepresented employees are not entitled to the
presence of a coemployee during an investigatory inter-
view.”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 per-
missible 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 dif-
ferent 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 em-
ployee, 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 agree-
ment 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 em-
ployer 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 fel-
low 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 inter-
viewee.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 non-
unionized workplace where no collective-bargaining
agreement would provide for formal grievance proce-
dures.83

because it determined that the Board should not have assumed that the
Act mandated the Sears interpretation. 794 F.2d 120 (3d Cir. 1986).
76 289 NLRB at 627 (emphasis added).
77 Id. at 628.
78 Id.
79 Id. at 630.
80 Id. at 629.
81 Id.
82 Id. at 629–630 (quoting Materials Research, 262 NLRB at 1021
(Member Hunter, dissenting)).
83 Id. at 630.
The DuPont Board then proceeded to consider the situa-
tion that would arise if an employer decided, as is its pre-
rogative under Weingarten, that, rather than have a repre-
sentative present, it would prefer to forego the interview
altogether. In a unionized workplace, although the em-
ployee 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 pro-
cedures 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 Weingar-
ten 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 deter-
mined 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 rep-
resentation at an investigatory interview.87
3. Should Weingarten now be re-extended?
With this background, the issue of Weingarten represen-
tation in nonunionized workplaces has arisen again, and
today, my colleagues in the majority decided 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 Respon-
dent has not violated the Act, because nonunionized em-
ployees 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 recogni-
84 Id.
85 Id.
86 Id. at 631.
87 Id. at 630 fn. 15.
88 262 NLRB at 1016–1019.
89 274 NLRB at 230–231.
90 Once a majority of employees in an appropriate unit has properly
selected a representative, an employer becomes obligated to bargain
with that representative instead of with individual employees. For
example, Sec. 9(a) of the Act provides:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 694
tion 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 repre-
sentation during investigatory interviews, my colleagues
carve out an area in which they force nonunionized em-
ployers 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 repre-
sentative. Here, nonunionized employees would clearly
have the right to request that a coworker attend an investi-
gatory 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 employ-
ment, are burdened with this duty in one particular situa-
tion, that of investigatory interviews that may result in
discipline.92 My colleagues offer no explanation as to why

Representatives designated or selected for the purposes of col-
lective bargaining by the majority of the employees in a unit ap-
propriate for such purposes, shall be the exclusive representatives
of all the employees in such unit for the purposes of collective
bargaining in respect to rates of pay, wages, hours of employ-
ment, or other conditions of employment: Provided, That any in-
dividual employee or a group of employees shall have the right at
any time to present grievances to their employer and to have such
grievances adjusted, without the intervention of the bargaining
representative, as long as the adjustment is not inconsistent with
the terms of a collective-bargaining contract or agreement then in
effect: Provided further, That the bargaining representative has
been given opportunity to be present at such adjustment.
29 U.S.C. Sec. 159(a) (emphasis added).
Additionally, Sec. 8(a)(5) makes it an unfair labor practice for an
employer “to refuse to bargain collectively with the representative of
his employees, subject to the provisions of Section 9(a).” 29 U.S.C.
Sec. 158(a)(5).
91 As explained above, Chairman Van de Water also alluded to an
employee’s right to request representation. He noted that employees
can engage in conduct that is an attempt to obtain mutual aid or protec-
tion, such as requesting a Weingarten representative, and that employ-
ers cannot discipline them for making such a request. Materials Re-
search, 262 NLRB at 1020. He went on, however, to explain that the
mere fact that an employee attempts to obtain mutual aid or protection
does not mean that an employer is required to accede to the employee’s
request. Id. See also supra text accompanying notes 52–55.
92 Although my colleagues characterize my argument as stating that
extending the Weingarten right to the instant situation forces an em-
ployer to deal with the equivalent of a labor organization, I do not find
that coworker-representatives are necessarily the equivalent of a labor
organization. What my colleagues decide in this case, however, treads
very close to the line of forcing employers to “deal with” the equivalent
of a “labor organization” that has not been certified or recognized, as
explained supra note 69. My colleagues’ decision places this burden on
nonunionized employers in one particularized situation and no other. It
is no answer to argue, as my colleagues do, “that an employer is com-
pletely free to forego the investigatory interview,” and thus, has no
obligation to deal with the employee’s coworker-representative. The
fact of the matter is that if the employer wants to get to the bottom of a
this one situation should be treated any differently from a
myriad of other situations in which an individual nonun-
ionized 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 obvi-
ously 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 nonun-
ionized 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

situation with an employee by questioning that employee, something
that it would be perfectly free to do with regard to any other term or
condition of employment, it does have an obligation to deal with that
employee’s coworker-representative. In this regard, the nonunionized
employer has entirely the same obligation as a unionized employer,
even though its employees have not chosen to be represented by a
collective-bargaining representative.
93 My colleagues, like the Materials Research majority, assert that
unrepresented employees need the assistance and support of a fellow
employee in the investigatory-interview situation. This assertion, how-
ever, is driven neither by the statute nor by its legislative history. My
colleagues are treating a presumed need as a statutory mandate. Our
job, however, is to administer the Act that Congress passed, and noth-
ing in that statute nor the legislative history justifies creating this one
exception to our usual treatment of unorganized employees in the exer-
cise of their Sec. 7 rights. My colleagues’ approach treats the Act as
infinitely elastic without any statutory authorization.
94 In response to the question why nonunionized employees should be
entitled to a coworker-representative at investigatory interviews but not
at other meetings with their employers, my colleagues state that the
principles put forward by the Supreme Court in Weingarten “speak only
to this specific right” and that, therefore, other circumstances are not
“encompassed within the Weingarten rationale” and are not before the
Board today. This argument does not even begin to answer the question
posed, however. Of course these other nonunionized-workplace situa-
tions are not “encompassed within the Weingarten rationale”; Weingar-
ten’s rationale relates exclusively to union representation at investigatory
interviews—unionized employees clearly already have a right to be
represented with regard to changes in other terms and conditions of
employment.
Additionally, although these other situations involving meetings be-
tween nonunionized employers and employees are not explicitly raised
in this particular case, to the extent that these other situations demon-
strate the difficulties with extending the Weingarten right to the nonun-
ionized setting, they are before the Board today. My colleagues avoid
the issue because there is no logical reason for extending nonunionized
employees a representational right in the investigatory-interview situa-
tion and no other. However, if my colleagues were to acknowledge this
fact, they would have to find that nonunionized employees have a right
to at least this limited Weingarten-type representation at any meeting
with an employer in which terms and conditions of employment may be
affected, despite the fact that they are not represented by a certified or
recognized union. In fact, logically extended, my colleagues’ reasoning
would result in a greatly reduced need for employees to avail them-
selves of the Act’s processes relating to certification of a bargaining
representative, because they would already have the right to at least
limited representation in virtually every situation in which terms and
conditions of employment may be affected.
EPILEPSY FOUNDATION OF NORTHEAST OHIO 695
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 ex-
plained 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 representa-
tive. As explained above, a union representative serves
the interests of both employee and employer at an inves-
tigatory interview by eliciting facts and helping to avoid
the filing of frivolous grievances. A coworker represen-
tative, 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 major-
ity respond to these concerns by asserting that they are
“wholly speculative.” It seems more speculative, how-
ever, 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 as-
sistance 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 “repre-
sentatives” who are not only hostile to the employer but
extremely unlikely to be of any assistance to the em-
ployer 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 inves-
tigatory interview could help to safeguard the interests of
the bargaining unit generally. There is no similar guaran-
tee in the nonunionized workplace. A coworker, chosen as
a representative by an employee for his or her own per-
sonal reasons, may or may not have the interests of the rest
of the workforce in mind. A coworker-representative cer-
tainly would not have the same kinds of incentives to look
out for these wider interests that a union representative

95 262 NLRB at 1021.
96 289 NLRB at 628–630.
97 262 NLRB at 1021.
98 It should be noted here that the present case is just such a situa-
tion. The person whom Borgs requested as his coworker-representative
was Hasan, Borgs’ partner in writing the January 17 memo about which
Loehrke and Berger wished to meet with Borgs. Thus, Hasan would
have been unlikely to be of assistance to the employer in any way at
Borgs’ interview as he had a direct interest in defending himself as well
as Borgs.
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 set-
ting, I would find that a proper balance of labor and man-
agement interests should not result in imposing the burden
of Weingarten representation on employers in the nonun-
ionized 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 in-
vestigatory 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
99 As explained, my colleagues assert that all of these concerns re-
garding a coworker-representative’s inability to provide the same types
of assistance as a union representative are mere speculation. They
focus specifically on my concern that a coworker-representative will be
of less assistance to the employer, but as I have explained, it is at least
as likely that a coworker-representative will be less helpful to employ-
ees. One of the reasons that the Weingarten Court held that an em-
ployee’s ability to have a union representative present at investigatory
interviews was protected even though the employee at issue would be
seeking aid or protection against individual discipline was that a union
representative safeguards the interests of the entire bargaining unit. A
union representative performs this function by making certain that the
employer does not engage in a practice of imposing discipline unjustly
and by his or her very presence at the interview, which assures other
unit employees that he or she will provide the same aid or protection to
them if it should become necessary. Weingarten, 420 U.S. at 260–261.
There just is not the same type of assurance with a nonunion coworker-
representative. To understand this fact, one must only consider the
present case. Here, Hasan, the potential coworker-representative, took
part with Borgs in the very activity under investigation. He thus had a
vested interest and would have wanted to protect his own interests as
well as Borgs’. It is unlikely that he would have been concerned with
the possibility that the employer would apply similar discipline in some
future situation, and it is even more unlikely that his presence at the
interview, as Borgs’s friend and compatriot in the behavior under in-
vestigation, would have sent a message to other employees that he
would be there for them if the need arose.
It is also important to point out here that my colleagues’ discounting
of these factors under the guise of speculation, relating to the benefits
of union representatives at investigatory interviews, flies in the face of
Weingarten itself. In that case, the Supreme Court emphasized the
importance of these very benefits. They were an important part of the
factors that went into balancing the conflicting interests of labor and
management, a balancing that in Weingarten supported the finding that
unionized employees are entitled to the presence of a union representa-
tive at investigatory interviews. Here, these same factors weigh against
finding a similar right in nonunionized employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 696
counter to the Act and does not properly balance the inter-
ests 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 Respon-
dent terminated Hasan and later provided him with a letter
stating that he had been terminated because of his conduct
over the previous 9 months, specifically his refusal to ac-
cept supervision and his confrontations with staff mem-
bers. 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 relat-
ing 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 condi-
tions. 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 subse-
quent 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 col-
leagues determine that the January 17 memo was a clear
attempt to raise issues related to Hasan’s and Borgs’s em-
ployment 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 9 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 be-
hind 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 protec-
tion in the absence of a union or collective-bargaining
activity; however, concerted activity with the limited pur-
pose of protesting the hiring, discharge, or continued em-
ployment 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, pro-
tected activity. This exception applies to concerted activ-
ity that protests the selection or termination of a supervisor
who directly impacts on the employees’ working condi-
tions.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 activ-
ity.
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 em-
ployment. An examination of some of the cases that have
found protected activity when employees have protested

100 Hasan’s conduct in this regard was clearly “concerted” as he and
Borgs wrote and submitted the January 17 memo together.
101 See, e.g., Atlantic-Pacific Construction Co. v. NLRB, 52 F.3d
260, 262 (9th Cir. 1995); NLRB v. Ford Radio & Mica Corp., 258 F.2d
457, 463 (2d Cir. 1958); Joanna Cotton Mills Co. v. NLRB, 176 F.2d
749, 753 (4th Cir. 1949); and Hoytuck Corp., 285 NLRB 904 fn. 3
(1987).
102 Lutheran Social Service of Minnesota, 250 NLRB 35, 41 (1980).
103 See, e.g., Atlantic-Pacific Construction, 52 F.3d at 262 (“[W]here
the purpose of the concerted activity is not related to working condi-
tions, as where personal animus motivates employee protest over the
selection of a manager, the protest is not protected.”) (citations omit-
ted); NLRB v. Oakes Machine Corp., 897 F.2d 84, 89 (2d Cir. 1990)
(“In a narrow category of cases . . . concerted activity to protest the
discharge of a supervisor or to effect the discharge or replacement of a
supervisor may be ‘protected,’ provided the identity of the supervisor is
directly related to terms and conditions of employment.”) (citations
omitted); Caterpillar, Inc., 321 NLRB 1178, 1179–1180 (1996); Hoy-
tuck Corp., 285 NLRB at 904 fn. 3; Fair Mercantile Co., 271 NLRB
1159, 1162 (1984), enfd. mem. 767 F.2d 930 (8th Cir. 1985), supple-
mented by 277 NLRB 1321 (1985); and Lutheran Social Service, 250
NLRB at 41 (“[P]rotests against the appointment or termination of
‘low-level’ supervisors may be protected when directly related to the
employees’ conditions of employment.”) (citations omitted).
EPILEPSY FOUNDATION OF NORTHEAST OHIO 697
the employment of a supervisor demonstrate that the pre-
sent 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 em-
ployee, charging a supervisor with “negligence in oversee-
ing safety and production.”105 During the grievance proc-
ess, 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 em-
ployer had violated the Act, and the Seventh Circuit up-
held that determination. In so doing, the court distin-
guished 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 spe-
cific problems with the supervisor and articulated those
problems within the protest materials themselves.
Similarly, in NLRB v. Oakes Machine Corp.,110 the Sec-
ond Circuit upheld the Board’s determination that em-
ployee 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 activ-
ity,”112 but then went on to determine that, in the circum-
stances 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 pro-

104 544 F.2d 320 (7th Cir. 1976).
105 Id. at 323.
106 Id. at 324. The attached statement read, “ATTENTION ALL
WORKERS This case of J. Mayer [employee] v. J. Mirabella [supervi-
sor] concerns ALL workers. We must not think that Mirabella is just
peculiar. The Company knows what Mirabella does and supports him
and all other foremen who act like him. WE DON’T HAVE TO TAKE
IT!!!” Id.
107 Id.
108 Id. at 327–328 (explicitly distinguishing the situation at issue in
Joanna Cotton Mills v. NLRB, 176 F.2d 749 (4th Cir. 1949), in which
an employee was discharged for circulating a petition calling for a
supervisor’s termination after “the supervisor had disciplined the em-
ployee for operating gambling devices and being overly attentive to
female employees during working hours”).
109 Id. at 328.
110 897 F.2d 84 (2d Cir. 1990).
111 Id. at 86–87. Normally, employees “have no interest in the iden-
tity of high level management”; however, in this case, the company
president could be considered much like a supervisor because he had
“direct contact with employees, and his activities paralleled those of a
low level supervisor at least to the extent that he made some job as-
signments.” Id. at 90.
112 Id. at 89.
jects, 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 re-
quired to spend on the president’s personal projects for the
unprofitable year.115 Thus, the letter to the parent com-
pany 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 re-
move 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 perma-
nently striking employees at other Caterpillar plants.119
The Board found that the decision permanently to replace
employees, conduct that was clearly referenced in the em-
ployees’ 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 em-
ployees 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 Ber-
ger 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
113 Id.
114 Id.
115 Id.
116 321 NLRB 1178 (1996).
117 Id. at 1178.
118 Id. at 1179.
119 Id.
120 Id. at 1180.
121 For the full text of the January 17 memo, see supra note 7.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 698
working conditions, even if the January 17 memo itself did
not directly cite such conduct. In this regard, my col-
leagues 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 super-
visor. 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 condi-
tions 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 prob-
lems with Berger’s supervision, cannot mean that the ini-
tial memo is suddenly endowed with new meaning. In-
deed, it is more a tacit recognition of the unprotected na-
ture 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 con-
dition, 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 behav-
ior. 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

122 My colleagues assert that, in accepting the judge’s finding that
the January 29 memo was merely an after-the-fact attempt at damage
control, I contend, “at least implicitly[,] that the January 17 memo must
have related to something other than supervisory conduct affecting
employees.” As explained, my contention is that the January 17 memo
did nothing more than call for Berger’s removal as supervisor without
protesting any specific actions on Berger’s part. As the cases discussed
supra demonstrate, absent some indication that the call for removal of a
supervisor is in response to some specific activity on the part of that
supervisor that affected employees’ terms and conditions of employ-
ment, the Board should not find that such an unexplained call for a
change in management is protected activity.
My colleagues also aver that the fact that the Respondent did not
take action against Hasan until after it received the January 29 memo
“reasonably suggests that the Respondent understood that both memos
related to supervisory conduct affecting the employees.” To the extent
that this speculation is even relevant, it should also be noted that Hasan
and Borgs wrote the January 29 memo after learning that Berger and
Loehrke were displeased with the January 17 memo and that the Re-
spondent’s disciplinary memos to Hasan and Borgs referenced the
January 17 memo. These additional facts can just as “reasonably sug-
gest” that the Respondent viewed the two memos as separate: the Janu-
ary 17 memo calling for the removal of a supervisor with no supporting
reason and the January 29 memo merely attempting to divert the nega-
tive attention engendered by the January 17 memo.
123 See, e.g., Oakes Machine, 897 F.2d at 89 (“Whether employee
activity aimed at replacing a supervisor is directly related to terms and
conditions of employment is a factual inquiry, based on the totality of
the circumstances.”).
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 em-
ployee 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’ deci-
sion to return to the Materials Research approach and en-
dow unrepresented employees with such a right is contrary
to the NLRA, which does not required nonunionized em-
ployers to “deal with” unrecognized and uncertified em-
ployee representatives. Additionally, even if this approach
were cognizable under the Act, it does not result in a rea-
sonable balance of the competing interests of labor and
management. Whereas a union representative in an inves-
tigatory interview can be of assistance to the individual
employee, the employer, and the unit as a whole, a co-
worker-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 Re-
spondent’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 su-
pervisor without citing a single incident of supervisory
conduct that affected his terms or conditions of employ-
ment. 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.

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.
EPILEPSY FOUNDATION OF NORTHEAST OHIO 699

WE WILL NOT coercively interrogate you concerning
your concerted protected activities.
WE WILL NOT issue disciplinary warnings to you for
disclosing or discussing your wages with other employees.
WE WILL NOT threaten you with reprisals for disclos-
ing or discussing your wages with other employees.
WE WILL NOT maintain a rule prohibiting you from
disclosing or discussing your wages with other employees.
WE WILL NOT issue disciplinary warnings to you for
engaging in protected concerted activities.
WE WILL NOT discharge you for engaging in pro-
tected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL rescind our policy prohibiting you from dis-
cussing your wages with other employees.
WE WILL, within 14 days from the date of the Board’s
Order, offer Arnis Borgs and Ashraful Hasan full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or any other rights or privileges pre-
viously 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.
Steven Moss, Esq., and Morlee A. Rothchild, Esq., for the Re-
spondent.
Cynthia Lowencamp, Esq., of Cleveland, Ohio, and Neil Myers,
Esq., of Euclid, Ohio, for the Charging Parties.
DECISION
STATEMENT OF THE CASE
RICHARD A. SCULLY, Administrative Law Judge. On
charges filed on April 10, 1996,1 by Arnis Borgs and on May 13,
1996, by Ashraful Hasan, the Regional Director, Region 8, Na-
tional Labor Relations Board, issued a consolidated complaint on
November 14, 1996, alleging that Epilepsy Foundation of North-
east 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 com-
mitted 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

1 Amended charges were filed by Borgs on June 21 and 27, 1996.
examine and cross-examine witnesses and to present other evi-
dence and argument. Briefs submitted on behalf of the General
Counsel and the Respondent have been given due consideration.
On the entire record, and from my observation of the demeanor
of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material, the Respondent was a not-for-profit cor-
poration 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 an-
swer 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 of-
fered no other reasons why it would not be subject to the Board’s
jurisdiction. The Board has long held that the only basis for de-
clining jurisdiction over a charitable organization is a finding that
its activities do not have a sufficient impact on interstate com-
merce 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 stan-
dards 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 re-
medial measures which may be required to remedy unlawful
interference with such rights. United Services for the Handi-
capped, 251 NLRB 823, 825 (1980). Accordingly, I 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 epi-
lepsy 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 Reha-
bilitation 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 transi-
tion 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 direc-
tor 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 700
project included a full-time position for a transition specialist and
Dr. Ashraful Hasan was hired by the Respondent to fill that posi-
tion. 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 re-
lated 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 prohibit-
ing 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 infor-
mation 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 informa-
tion and Borgs said that he had not disclosed it but merely dis-
cussed 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 some-
one 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 shar-
ing confidential salary information as well as for being “insubor-
dinate” 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 Admini-
stration 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 Respon-
dent has an unwritten policy that unauthorized access to or dis-
semination 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 sala-
ries 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 pre-
pared 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 writ-
ten 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 justifica-
tion for it, a rule requiring that employee salaries be kept confi-
dential 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 inter-
rogated about or disciplined for discussing salary information
with other employees who voluntarily disclosed such informa-
tion, 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 actu-
ally 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,

2 These statements are consistent with Borgs’ credible testimony as
to what he was told by Loehrke about the confidentiality of salary
information on December 28, 1995.
EPILEPSY FOUNDATION OF NORTHEAST OHIO 701
not just that which concerns supervisory personnel or is con-
tained in confidential files, and that even voluntary disclosure of
an employee’s own salary would violate the policy. If the Re-
spondent intended the prohibition to apply only to accessing
salary information concerning supervisors or that which is physi-
cally 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 Merchan-
dise Co., 299 NLRB 1125, 1126 (1990). I find that the Respon-
dent’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 is-
sued 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 pro-
tected 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 reimburse-
ment 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 ad-
mitted 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 simi-
lar 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 accu-
sation 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 ten-
dency 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 infor-
mation concerning supervisory employees who had not voluntar-
ily 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 fa-
vorably disposed toward the Respondent. This creates the infer-
ence, which I draw, that Berger’s testimony would not have sup-
ported the Respondent’s position. See International Business
Machines, 285 NLRB 1122, 1123 (1987). I also find that Loe-
hrke’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 super-
visors. However, a memo, dated November 28, 1995, written by
Berger, refers only to Schoenberger’s report about Borgs’ show-
ing 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 Ber-
ger 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, com-
plained 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 con-
tains a handwritten note by Loehrke, dated January 29, 1996, in
which she states that, in talking with Schoenberger, she had “dis-
covered” 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 al-
leged belief that Borgs had improperly obtained confidential
information concerning any supervisor’s salary. Borgs has con-
sistently 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 dis-
cussed 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 evi-
dence is Berger’s memo to Loehrke about what Schoenberger
had allegedly told him. That memo states: “I asked Jeff [Schoen-
berger] 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 be-
cause he had improperly obtained or disclosed confidential in-
formation 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 dis-
charged Arnis Borgs and that it unlawfully reprimanded and
discharged Ashrafal Hasan because they had engaged in con-
certed activities protected by the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 702
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 reim-
bursed employees for mileage when they used their personal
vehicles for work. The Respondent’s employee handbook pro-
vides that employees who are required to use their personal
automobiles for business will be reimbursed at “the IRS ap-
proved rate for mileage.” The IRS approved rate was 29 cents
and employees were only receiving 25-cents per mile. He credi-
bly 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 Em-
ployer. 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 book-
keeper 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 No-
vember 15, 1995, for $135.60, representing the difference be-
tween 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 reimburse-
ment 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 en-
gaged 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 Commit-
tee” 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 con-
tacted 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 mis-
understood 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 plac-
ing the warnings in their files and demanded an explanation.
Hasan sent copies of this memo to both Loehrke and Borgs. Ber-
ger responded with a memo dated October 13, 1995, which criti-
cized 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 tes-
timony 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 ques-
tion 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 submit-
ted a memo to Berger concerning the NIDRR project which
stated:

3 Hereinafter, all dates are in 1996.
EPILEPSY FOUNDATION OF NORTHEAST OHIO 703
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 re-
iterate that your supervision of the program operations per-
formed by them is not required.
Your input to the NIDRR project in the past is appreci-
ated. 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 on 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 in-
timidated 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 Ber-
ger had to be present. Borgs asked if Hasan could also be present
and Loehrke said that also was not an option. When Borgs reiter-
ated 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 con-
ference room. Loehrke told him that his refusal to meet the pre-
vious day constituted gross insubordination and that he was ter-
minated. 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 perform-
ance.” This included failing to build constructive work relation-
ships 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 Loe-
hrke and Berger on February 1 to discuss these issues, which is
said to be an unacceptable challenge to her authority and to con-
stitute 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 warn-
ing 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 warn-
ing 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. Loe-
hrke 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 war-
ranted 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 9 months, including, refusal to accept supervi-
sion 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 “defi-
antly,” 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 dis-
charged in retaliation for their having engaged in concerted activ-
ity 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 con-
certed activity on their part had nothing to do with their termina-
tions.
In cases where an employer’s motivation for a personnel ac-
tion 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 704
same action even in the absence of protected activity on the em-
ployee’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 knowl-
edge 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 “en-
gaged 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 tes-
timony 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’ un-
contradicted testimony that Berger told him that Loehrke was
“really angry” about his raising the reimbursement question es-
tablishes 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 be-
tween 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 pro-
tected 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 em-
ployer 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 supervi-
sion 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 insubordina-
tion 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 insubor-
dination and that the Respondent did not violate the Act by dis-
charging 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 de-
nied; and that he was discharged because of his refusal to attend
the interview. However, current Board law is clear that Weingar-
ten 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 Su-
preme Court has not reversed. E.g., Herbert Insulation Corp.,
312 NLRB 602, 608 (1993); and 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 de-
nied.
b. Ashraful Hasan
In the case of Hasan, I find the evidence fails to support an in-
ference 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 sup-
ported 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 con-
cerned about the title of the “Ethics Committee” they proposed
because it implied there was something unethical going on, with-
out 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 activi-
ties 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 Janu-
ary 17 memo which details any problems with the NIDRR pro-
ject 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 em-
ployees 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 supervi-
sion of them with higher management. It simply informs Berger

4 221 NLRB 309 (1975).
5 271 NLRB 1159 (1984).
EPILEPSY FOUNDATION OF NORTHEAST OHIO 705
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, Loe-
hrke interpreted the memo as a dismissal of Berger from the pro-
ject 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 con-
certed 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 moti-
vated 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

6 370 U.S. 9 (1962).
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 insensi-
tive 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 sup-
port 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 coer-
cively interrogating, issuing disciplinary warnings to and threat-
ening 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 prac-
tices 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 here.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
[Recommended Order omitted from publication.]