Mitsubishi Hitachi Power Systems Americas, Inc.

National Labor Relations Board - Board Decisions

Jun 18, 2018

366 NLRB No. 108 (N.L.R.B. 2018)

366 NLRB No. 108
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Mitsubishi Hitachi Power Systems Americas, Inc. and
Mohamed Shahat. Case 12–CA–188952
June 18, 2018
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND EMANUEL
On February 1, 2018, Administrative Law Judge Geof-
frey Carter issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions1 and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions3
and to adopt the recommended Order as modified.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Mitsubishi Hitachi Power Systems Americas, Inc., Lake
Mary, Florida, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as modi-
fied.

1 No party excepts to the judge’s dismissal of the allegations that the
Respondent violated Sec. 8(a)(1) by issuing a written warning to em-
ployee Mohamed Shahat, directing Shahat not to discuss his complaint
about his supervisor with other employees, and discharging employee
Amasis Yazid.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incor-
rect. 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.
3 In affirming the judge’s conclusion that the Respondent violated
Sec. 8(a)(1) by discharging Shahat, Chairman Ring and Member
Emanuel find it unnecessary to rely on the judge’s citation to Fresh &
Easy Neighborhood Market, Inc., 361 NLRB 151 (2014), and they
express no opinion concerning whether that case was correctly decided.
Member Emanuel notes that the credited evidence provides no plausi-
ble explanation for why the Respondent initially decided that Shahat
should receive only a written warning on July 8, 2016, but decided to
instead discharge him on July 14, 2016, after he had formally raised a
group complaint about his supervisor to the Respondent on July 11,
2016.
4 We shall modify the judge’s recommended Order to conform to the
Board’s standard remedial language.
1. Insert the following as paragraph 2(e) and reletter
the subsequent paragraphs.
“(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.”
Dated, Washington, D.C. June 18, 2018
______________________________________
John F. Ring, Chairman
______________________________________
Lauren McFerran, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
John Plympton and Christopher Zerby, Esqs., for the General
Counsel.
William deMeza, Jr., Esq., for the Respondent.
DECISION
GEOFFREY CARTER, Administrative Law Judge. In this case,
the General Counsel asserts that Mitsubishi Hitachi Power Sys-
tems Americas, Inc. (Respondent) violated the National Labor
Relations Act by, in 2016: disciplining and discharging piping
systems engineer Mohamed Shahat (Shahat or Charging Party);
discharging piping design engineer Amasis Yazid (Yazid); and
threatening Shahat (before he was discharged) that he would be
in trouble if he spoke to other employees about a complaint that
he submitted to human resources about his supervisor. Re-
spondent asserts that its decisions to discipline and discharge
Shahat and Yazid were nondiscriminatory, and denies violating
the Act in any fashion. As explained below, I find that Re-
spondent violated Section 8(a)(1) of the Act when it discharged
Shahat, but I recommend that the other allegations in the com-
plaint be dismissed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
STATEMENT OF THE CASE
This case was tried in Kissimmee, Florida from October 30
to November 1, 2017.1 Shahat filed the unfair labor practices
charge in this case on November 29, 2016, and filed an amend-
ed charge on January 25, 2017.2 Subsequently, the General
Counsel issued a complaint on March 31, 2017.
In the complaint, the General Counsel alleges that Respond-
ent violated Section 8(a)(1) of the National Labor Relations Act
(the Act) by: (a) issuing a disciplinary action notice to Shahat
on or about July 8, 2016, because he engaged in protected con-
certed activities; (b) discharging Yazid on or about July 22,
2016, because he engaged in protected concerted activities; (c)
in August 2016, directing employees not to discuss complaints
about their supervisor with other employees, and threatening
employees with unspecified reprisals if they did so; and (d)
discharging Shahat on or about October 13, 2016, because he
engaged in protected concerted activities. Respondent filed a
timely answer denying the alleged violations in the complaint.
On the entire record,3 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT4
I. JURISDICTION
Respondent, a Delaware corporation with an office and place
of business in Lake Mary, Florida, engages in the business of
providing power generation equipment and technology. In the
12 months before the complaint was filed, Respondent pur-
chased and received goods at its Lake Mary, Florida facility
that are valued in excess of $50,000 and come directly from
points outside the State of Florida. Respondent admits, and I
find, that Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.

1 I agreed to keep the trial record open after November 1, 2017, to
allow time for Respondent to finish searching its files for electronically
stored information (ESI) that would be responsive to the General Coun-
sel’s subpoena. (Tr. 7–8, 497–498.) On November 22, 2017, Re-
spondent disclosed responsive ESI to the General Counsel. After re-
viewing the ESI, the General Counsel filed a motion on November 30,
2017, to close the record and set a briefing schedule because the Gen-
eral Counsel did not wish to present additional evidence. Hearing no
objection from Respondent or Charging Party, on December 4, 2017, I
issued an order granting the General Counsel’s motion.
2 All dates are in 2016, unless otherwise indicated.
3 The transcripts and exhibits in this case generally are accurate.
However, I hereby make the following corrections to the trial tran-
scripts: Throughout – “Mason” should be “Meysam”; Tr. 198, l. 23:
“system” should be “statement”; Tr. 264, l. 1: “Shabbat” should be
“Shahat”; Tr. 394, l. 23: “personnel” should be “personal”; Tr. 416, l. 6:
“Yard’s” should be “Yazid’s”; Tr. 449, l. 22: “meaning” should be
“needing”; and Tr. 494, l. 3: “were” should be “where.”
4 Although I have included several citations in this decision to high-
light particular testimony or exhibits in the evidentiary record, I empha-
size that my findings and conclusions are not based solely on those
specific citations, but rather are based on my review and consideration
of the entire record for this case.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. Overview of respondent’s business
As indicated above, Respondent provides products and ser-
vices for the electric power generation industry. Those prod-
ucts include gas, steam and geothermal turbines, boilers, and
environmental control systems. The industrial gas turbines that
Respondent produces are large enough to provide power for an
entire city. (Tr. 111, 184, 224, 404; GC Exh. 46 (pp. 1, 3).)
2. The piping group
The piping group at Respondent’s facility is responsible for
designing the connective piping for gas turbines. Piping may
carry natural gas, lubrication oil, cooling air, or other fluids
necessary for the turbine. Piping design is precise and detail
oriented because some of the piping must be able to withstand
high temperatures and pressure, and a failure in the piping may
damage expensive equipment and/or pose safety risks. (Tr.
224–226, 404–405.)
In September 2014, Respondent hired Arash Mohajeri to
serve as assistant manager of engineering. In that capacity,
Mohajeri supervised approximately 10 employees and 2 interns
in the piping group, and reported to senior manager of plant
engineering, Phil Deen, who previously supervised the employ-
ees in the piping group. (Tr. 17–18, 47–48, 185, 332, 401–402,
406, 488–489.)
As they work on piping design projects, employees assigned
to the project can identify errors in the piping design and ask
the responsible employee to correct the error. Respondent gen-
erally expects more senior engineers to produce work with
fewer mistakes, but any engineer on the project can identify
mistakes and suggest corrections. Since Mohajeri supervises
the piping group, he is responsible for ensuring that the finished
piping design is correct and mistake-free. Because of the atten-
tion to detail that is required to fulfill that responsibility, Mo-
hajeri recognized that some might see his management style as
that of a micromanager. On the other hand, Respondent re-
garded Mohajeri as a very good supervisor with strong tech-
nical skills and a professional demeanor, and credited Mohajeri
for improving the efficiency of the piping group. (See, e.g., Tr.
226, 231, 314–324, 334, 383, 406–407, 429; GC Exhs. 43–44;
R. Exh. 13.)
3. Mohamed Shahat and Amasis Yazid5 – background
In July 2013, Respondent hired Shahat as a piping systems
engineer II. In that position, Shahat (among other duties) de-
veloped piping systems for Respondent’s gas turbine power
projects, and ensured that the piping requirements of the pro-
jects were fulfilled in a timely manner. (Tr. 99, 110–112, 260;
R. Exh. 26.)
In April 2015, Respondent hired Yazid as a senior piping de-
sign engineer. In that role, Yazid (among other duties) was
tasked with using 3D modeling software and other resources to

5 Yazid also went by the nickname “Lakim” when he worked for Re-
spondent. (See, e.g., Tr. 24, 122, 419, 465; GC Exh. 3 (pp. 2–3); GC
Exh. 4.)
MITSUBISHI HITACHI POWER SYSTEMS AMERICAS, INC. 3
develop piping system designs for Respondent’s gas turbine
power projects, and ensuring that the piping and equipment for
the gas turbines were hooked up. (Tr. 18, 49, 67, 95, 184, 232–
233, 409; R. Exh. 22.)
Both Shahat and Yazid worked as part of the piping group
under Mohajeri’s supervision. (Tr. 17–18, 28–29, 48, 70–71,
95, 99, 113, 185, 432.)
B. Respondent’s Workplace Policies6
1. Performance evaluations and performance
improvement plans
As explained in Respondent’s employee handbook,
“[p]erformance reviews are typically conducted annually and
include discussion, assessment and goal setting. These reviews
are designed to provide feedback and a formal assessment and
documentation of performance, accomplishments, and career
interests. The performance review may also include discussion
of potential changes going forward and training or personal
development. Human Resources oversees the performance
review process.” (GC Exh. 46 (p. 9).)
Respondent has its direct supervisors complete annual per-
formance evaluations in May of each year, subject to the review
of a second level supervisor and the human resources depart-
ment.7 As part of the evaluation, the supervisor rates the em-
ployee in several categories by selecting one of the following
ratings: Does Not Meet Requirements; Needs Improvement;
Meets Expectations, Exceeds Expectations; or Outstanding
Achievement. Based on the category ratings, which carry dif-
ferent weights in the evaluation, the employee receives an
overall performance rating. Both the direct supervisor’s man-
ager and human resources need to approve the annual perfor-
mance evaluation before the direct supervisor presents it to the
employee. Employees who receive an overall rating of Meets
Expectations or higher on their annual performance evaluations
become eligible for a wage increase. (Tr. 50–51, 76, 112, 247–
248, 376–378; see also R. Exh. 9 (draft annual performance
evaluation for Shahat, containing all five ratings).)
If an employee receives an overall annual performance eval-
uation rating of Needs Improvement or lower, then Respond-
ent’s policy is to prepare a performance improvement plan
(PIP) that identifies the current performance that is under re-
view, and the plan that Respondent expects the employee to
follow to improve his or her performance. The employee’s
supervisors normally prepare the PIP, but human resources will
review the PIP before it is implemented. Respondent may take

6 Respondent issues its employee handbook to all employees, re-
gardless of the employee’s assigned department. (Tr. 89, 374–375; see
also GC Exh. 46 (excerpt from employee handbook); R. Exh. 38
(same).)
7 At the beginning of the fiscal year, Respondent prepares “individ-
ual performance plans” that define the goals for each employee. The
individual performance plan does not include performance ratings, but
can serve as a reference regarding employees’ progress with their as-
signed goals when supervisors check in with employees periodically
about their performance, and when supervisors prepare employees’
annual performance evaluations. (Tr. 227–229, 246–247; see also R.
Exh. 1 (individual performance plan for Yazid); compare R. Exh. 3
(annual performance evaluation for Yazid).)
corrective action (e.g., disciplinary action) in conjunction with,
during or after the PIP. (Tr. 30, 95–96, 107–108, 249, 325–
326, 378, 381; GC Exh. 5 (example PIP form).)
2. Disciplinary policy
In circumstances where an employee is not meeting Re-
spondent’s expectations or standards, Respondent’s managers
“may provide coaching, direction, more focus or additional
training in order to encourage, help or direct [the employee] to
improve skills, redirect behaviors and otherwise get back on
track.” The tools that managers may use to get an employee
back on track may include: coaching; an improvement plan
(which can be either developmental or corrective); a discipli-
nary action notice; suspension pending review; and discharge.
“Coaching, improvement plans, or disciplinary action up to
[and] including termination of employment are based on the
nature and severity of the issue.” Respondent’s human re-
sources department is notified whenever an employee receives
formal discipline, and any formal disciplinary action notices
that are issued are placed in the employee’s personnel file. (Tr.
19, 50, 96–97; GC Exh. 46 (p. 18); see also GC Exhs. 2 (sam-
ple disciplinary action notice), 45 (same, with an explanatory
cover sheet).)
While Respondent generally follows a progressive discipline
policy, Respondent may discharge an employee with no prior
disciplinary record if that is appropriate under the circumstanc-
es (e.g., for a severe infraction). Similarly, although Respond-
ent may attempt to work with employees who perform poorly
on the job and use discipline as a tool in that effort, there is no
requirement that Respondent impose discipline or implement a
performance improvement plan before discharging an employ-
ee for poor performance. (Tr. 107–109, 342–343, 381–382,
479, 491; see also Tr. 89–90, 478 (noting that Respondent’s
progressive discipline policy applies to all employees, regard-
less of department).)
3. Anti-harassment and equal employment opportunity policies
Respondent’s employee handbook states that Respondent
“will provide equal opportunity in employment to all applicants
and individuals without regard to race, color, sex, age, religion,
national origin, disability, genetic information, or other charac-
teristics protected by law. [Respondent] also prohibits work-
place harassment, as well as retaliation against team members
who complain of suspected discrimination or harassment.” The
employee handbook also advises employees that “[i]f you feel
you have been the victim of discrimination, harassment or retal-
iation, or have information concerning discrimination, harass-
ment or retaliation with respect to any applicant or team mem-
ber of [Respondent], please contact your Human Resources
Manager immediately. [Respondent] will promptly investigate
complaints and take appropriate action. [Respondent] will not
retaliate against any individual who complains and/or reports
incidents of discrimination or who takes part in an investigation
of a discrimination complaint.” (GC Exh. 46 (pp. 3–4); see
also id. (p. 13); R. Exh. 37; Tr. 374, 477.)
If Respondent determines that either a formal or informal in-
vestigation of a harassment complaint is required, then the hu-
man resources department will direct and/or conduct the inves-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
tigation. “The investigation may include, but is not limited to,
interviewing the complaining party, the alleged harasser, super-
visors and any other personnel, as required, to obtain sufficient,
factual information upon which to make a determination.” (R.
Exh. 37 (section 4.2(c)).)
4. Employee complaints
Respondent has an open door policy that permits employees
to present any concerns to their supervisor or manager, and/or
to human resources or a higher level manager. Employees may
also submit a formal complaint to human resources, which will
investigate the complaint. Respondent does not have formal
guidelines for how it will investigate a complaint. Instead,
Respondent decides what interviews to conduct and what doc-
uments to review based on its assessment of what is relevant to
the complaint. Human resources vice president Brian Shannon
supervises all investigations at Respondent’s Lake Mary facili-
ty, with input as appropriate from Respondent’s legal depart-
ment, as well as human resources manager Julie Hester, who
handles some investigations and reports to Shannon. (Tr. 66–
67, 94, 225–226, 375, 378–380, 405–406; GC Exh. 46 (p. 12).)
C. 2015 – Early Conflict between Mohajeri and Certain Piping
Group Employees
In or about September 2014, Mohajeri began supervising ap-
proximately 10 employees in the piping group. (Tr. 17–18, 47–
48, 185, 332, 401–402, 406, 488–489.) By 2015, disagree-
ments began to emerge between Mohajeri and some of the pip-
ing group employees, including Shahat and Yazid, including
the conflicts described below.
1. May 2015 – Shahat’s request for a letter of recommendation
On May 28, 2015, Shahat asked Mohajeri if he could write a
letter of recommendation for the Masters of Science in Engi-
neering Management program at the University of Central Flor-
ida. Mohajeri declined to write the letter because he did not
know Shahat well enough.8 (Tr. 152, 192–193, 306; GC Exhs.
9 (p. 1), 18.)
In light of Mohajeri’s decision that he should not write a let-
ter of recommendation for Shahat, Shahat asked Deen to write
the letter, since Deen supervised Shahat in the piping group
before Mohajeri joined the company. Deen agreed, and on
June 1, 2015, completed a recommendation letter stating that
Shahat would be an excellent candidate for the Masters of Sci-
ence program. (Tr. 48, 61–62, 433–435; R. Exh. 21 (p. 3); see
also GC Exh. 18 (Deen’s recommendation letter, stating that
Shahat communicated effectively, has excellent organizational
and research skills, and was a very intelligent and hardworking
engineer who is capable of grasping new concepts very quick-

8 Shahat and Mohajeri disagree somewhat about the reason that
Mohajeri offered for not writing the recommendation letter. See GC
Exh. 9 (p. 1) (showing that Shahat maintained Mohaheri said he could
not write a beneficial recommendation, while Mohajeri contended that
he declined to write the letter because he did not know Shahat well
enough). I have credited Mohajeri’s explanation because it is corrobo-
rated by Yazid’s testimony about what Shahat told him that Mohajeri
said when Mohajeri declined to write the recommendation letter. (See
Tr. 192–193.)
ly).9
2. May/June 2015 – the 3D modeling assignment dispute
In late May 2015, the piping group was shorthanded and was
working on multiple projects. Because of those circumstances,
Mohajeri asked Shahat to assist with the doing the 3D modeling
of the piping for a project. Although Shahat had some prior
experience with 3D modeling from a job with another compa-
ny, Shahat resisted taking the 3D modeling assignment that
Mohajeri proposed because, in Shahat’s view, a 3D designer
should handle the 3D modeling work instead of an engineer.
Asserting that 3D modeling was part of Shahat’s job duties,
Mohajeri insisted that Shahat handle the 3D modeling as re-
quested, and arrangements were made for Shahat to complete a
one-week training course on 3D modeling. (Tr. 36–37, 162–
164, 260–262, 274–275, 307, 438; GC Exh. 9 (p. 2); R. Exh. 21
(pp. 1–2, 4).)
On June 2, 2015, Mohajeri renewed his request that Shahat
perform 3D modeling work. Shahat reiterated his view that a
piping designer should perform the task, and also expressed
reluctance to work more than 8 hours in a day because of fami-
ly commitments and his Masters program studies. Mohajeri
advised Shahat that if Shahat continued to refuse the 3D model-
ing assignment, then Mohajeri would submit a disciplinary
action notice to human resources to discipline Shahat for insub-
ordination. Mohajeri showed Shahat a draft disciplinary memo,
and asked Shahat to take a couple of days to rethink the issue.
Yazid, who was sitting nearby in his cubicle, overheard the
conversation and testified that Mohajeri’s tone was belligerent,
bullying and “my-way-or-the-highway” in nature. (Tr. 37–38,
160–162, 185–187, 275–277; R. Exh. 21 (pp. 1–2); see also GC
Exh. 10 (disciplinary action notice that Mohajeri, using the
draft disciplinary memo, created after he met with Shahat); Tr.
37 (noting that Mohajeri prepared the disciplinary action notice
after he met with Shahat).)
On June 5, 2015, Shahat met with Mohajeri and, after being
confronted with the prospect of being issued a disciplinary
action notice, agreed to perform the 3D modeling assignment as
requested. After the meeting, Mohajeri wrote up a second dis-
ciplinary action notice about the dispute, but did not submit it
(or the June 2 notice) to human resources.10 In the June 5 no-

9 Deen testified that he wrote Shahat’s recommendation letter in a
way to highlight Shahat’s strengths because he wanted to help Shahat
get into the Masters program. (Tr. 435–436, 476.) To the extent that
Deen implied that he avoided commenting on Shahat’s technical abili-
ties because Shahat was weaker in that area at the time (see Tr. 435,
476), I have not given that testimony any weight because Deen’s testi-
mony on that point conflicts with the annual performance evaluation
that Shahat received in or about late April 2015. In that evaluation,
Shahat received an overall Meets Expectations rating, and received an
Exceeds Expectations rating for his functional technical skills. See GC
Exh. 36 (stating, among other things, that Shahat “has the functional
and technical knowledge and skills to do the job at a high level of ac-
complishment”).
10 Although Mohajeri did not submit the disciplinary action notices
to human resources, Respondent retained the notices for future refer-
ence concerning Shahat. (See Tr. 108 (Shannon relied on the discipli-
nary action notices when he decided to discharge Shahat); GC Exhs. 12
(memo indicating that Mohajeri would keep the documentation about
MITSUBISHI HITACHI POWER SYSTEMS AMERICAS, INC. 5
tice, Mohajeri noted that Shahat’s future performance evalua-
tions would be based (at least in part) on the “outcome of the
tasks and directions” that Mohajeri assigned to him. In addi-
tion, Mohajeri sent a memorandum to Deen on June 11, 2015,
to notify Deen of the dispute and how it was resolved. (Tr. 38–
40, 44–45, 261, 279–280, 436, 495–496; GC Exhs. 9 (p. 2), 11,
12; R. Exh. 8.)
3. July 2015 – Shahat considers transferring to a different de-
partment
In early July 2015, Shahat interviewed with Respondent’s
global sourcing department about the possibility of transferring
to a position there. Deen believed that Shahat might perform
well in the global sourcing job because Shahat had good com-
munication skills. When Shahat told Mohajeri that he might
want to transfer because the piping group wasn’t the group for
him, Mohajeri stated that he wouldn’t stop Shahat from trans-
ferring. Shahat interpreted Mohajeri’s statement to mean that
Mohajeri was trying to push Shahat out of the piping group.
(Tr. 61, 286–287, 439–440; R. Exh. 8.)
Ultimately, Shahat did not transfer to the global sourcing de-
partment. Although Shahat did well in his interview, he re-
quested a raise to go along with the new job, and thus the glob-
al sourcing department director decided not to select Shahat for
the position. (Tr. 61, 439–440; R. Exh. 8.)
4. August 2015 to spring 2016 – Shahat, Yazid and other em-
ployees discuss working conditions and Mohajeri’s
management style
In August 2015, Mohajeri established work goals for em-
ployees in the piping group. Shahat, Yazid and employees
U.K., S.H. and A.L. spoke and agreed that the work goals were
too difficult for the timeframe given and required excessive
work hours. Shortly after the new work goals were implement-
ed, employee A.L. quit and Mohajeri assigned A.L.’s work to
Shahat without adjusting the remainder of Shahat’s work goals.
When Shahat complained to Mohajeri that the work goals were
too high and would require Shahat to work 12–14 hours a day
to complete, Mohajeri responded that if Shahat could not work
the necessary hours to meet the goals, Mohajeri would find
someone else who could. (Tr. 117–120.)
More generally, over the latter half of 2015, and heading into
2016, Shahat, Yazid and employees U.K. and S.H. periodically
spoke amongst themselves about their dissatisfaction with the
working conditions in the piping group and how Mohajeri
treated them. For example, Shahat, Yazid, U.K. and S.H.
shared their concerns about how Mohajeri spoke to them in an
aggressive and abrasive manner, but spoke in a more friendly
way to piping group employees who had a national origin
and/or religion that was to Mohajeri’s liking.11 Shahat and

the 3D modeling dispute for future reference if needed), 13 (July 8,
2016 disciplinary action notice that refers back to the June 2015 disci-
plinary action notice); see also R. Exh. 8 (Mohajeri’s log of interactions
with Shahat, which describes the 3D modeling dispute).)
11 According to Shahat and Yazid, Mohajeri treated employees with
Iranian backgrounds well, and did not treat Sunni Muslim employees
(such as Shahat and Yazid) well. (Tr. 121–123, 149–150, 154, 191–
Yazid also did not believe it was appropriate for Mohajeri to
refer to employees by their national or regional origin (such as
Mohajeri referring to Shahat as “Arab Mohamed,” which Sha-
hat associated with “an inherited conflict between the people
from a Persian descent from Iran and people from Arab de-
scent”). (Tr. 116, 120–123, 189–192, 209–210; see also Tr.
115–116 (Shahat observed Mohajeri speak to employee U.K. in
an aggressive and abrasive manner in or about early May
2016), 187–188 (Yazid observed Mohajeri speak to employee
S.H. in a forceful and abrasive manner in March/April 2016),
208 (explaining that employees in the piping group sit in cubi-
cles that are divided by a 5-foot high partition, such that if one
employee stands up, he or she can see over the partition into
nearby cubicles).)
Although Shahat, Yazid and employees U.K., S.H. and A.L.
spoke to each other about their problems with Mohajeri, there is
no evidence that they presented their concerns to Mohajeri or to
another member of management in this timeframe (August
2015 to early May 2016).12 (See Tr. 146–151, 168, 211–212,
348.)
D. May 2016 – Shahat and Yazid Receive their Annual
Performance Evaluations
1. Shahat’s 2015–2016 performance evaluation
In preparing Shahat’s annual performance evaluation, Mo-
hajeri initially planned to give Shahat an overall rating of
Needs Improvement. However, after discussing Shahat’s eval-
uation with Deen, Mohajeri agreed to give Shahat a break and
assign a Meets Expectations rating and try and motivate Shahat
to improve (as opposed to assigning a Needs Improvement
rating, which normally would require Respondent to place Sha-
hat on a performance improvement plan). Deen advised Mo-
hajeri that when he met with Shahat about his evaluation, Mo-
hajeri should make sure that Shahat understood the things that
he needed to work on.13 (R. Exhs. 8 (referencing Mohajeri’s
discussion with Deen), 9 (draft evaluation with Needs Im-
provement rating); Tr. 30, 60–61, 265–266, 280–281, 283–284,
441–443, 486, 491).
Accordingly, on May 19, 2016, Mohajeri advised Shahat that
he received an overall rating of Meets Expectations for his
2015–2016 annual performance evaluation. Mohajeri stated as
follows on the evaluation paperwork regarding Shahat’s overall
rating:
Mohamed cooperates well with [customers] and colleagues

192, 397–398; R. Exhs. 41–42 (EEOC charges filed by Shahat and
Yazid).)
12 Shahat did testify that he spoke to Mohajeri on “multiple occa-
sions” about how Mohajeri treated employees, but did not specify a
date when he did so before May 2016. (See Tr. 123–124.)
13 The evidentiary record establishes that Shahat did have some per-
formance issues in early 2016, before his performance evaluation. For
example, from January to April 2016, Mohajeri noted instances where
Shahat demonstrated poor time management, improperly shifted work
to other employees, and overlooked necessary corrections to piping
drawings. Mohajeri relied on informal coaching to address these is-
sues, and Respondent did not discipline Shahat for any performance
problems. (R. Exhs. 8, 14 (pp. 1–4); Tr. 45, 60, 137, 265, 444.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
inside and outside of the team. He has a good understanding
of MHPS methods. He is practical and a good resource to his
team members.
Most important message: Time Management and improve-
ments [are] the key[s] to success.
(GC Exh. 7; see also Tr. 29, 112–113, 145, 282.) Mohajeri did
not tell Shahat that Respondent increased his rating from Needs
Improvement to Meets Expectations, but Mohajeri did indicate
that Respondent gave Shahat a break in certain rating catego-
ries.14 (Tr. 30, 145, 285–286.)
Towards the end of the May 19 meeting, Shahat told Mo-
hajeri about his concerns that: Mohajeri treats him and certain
other employees differently than the rest of the piping group;
and that Mohajeri had an aggressive, abrasive and micromanag-
ing style that was creating a stressful environment for the
group. Mohajeri responded that he would make a note of Sha-
hat’s concerns, but also suggested that Shahat should worry
about himself instead of others. (Tr. 123–124; GC Exh. 9 (p.
1).)15
2. Yazid’s 2015–2016 performance evaluation
On May 19, 2016, Mohajeri advised Yazid that he received
an overall rating of Needs Improvement for his 2015–2016
annual performance evaluation. Mohajeri stated the following
on the evaluation paperwork regarding Yazid’s overall rating:
Lakim is a team player and a hard worker. He needs to focus
more on multitasking and prioritizing on [the] projects side
along with improving his problem solving skills and end
product quality on the technical side. Proving his expertise
and establishing his lead in piping design inside and outside of
SP3D is very crucial.
Most important message: Technical knowledge in piping de-
sign along with quality and accuracy of deliverable is the key
to success.
(GC Exh. 3 (p. 5); R. Exh. 2; see also Tr. 21, 23, 51, 212, 245–
246, 250–251, 410–412.)
Although Yazid disagreed with various aspects of his per-
formance evaluation, he acknowledged on the evaluation that “I
am aware that I can do better if given the proper tools to exe-

14 Deen testified that in a conversation in which Shahat asked about
receiving a raise or promotion, he (Deen) told Shahat that a raise or
promotion was not going to be possible, in part because Respondent cut
Shahat a break on his last performance review. Shahat denied having
such a conversation with Deen. (Tr. 146, 443, 496.) I have not given
weight to either side’s testimony on this point because the conflicting
testimony was equally credible, and in any event is not material to my
analysis.
15 I have not credited Mohajeri’s testimony that he thought Shahat
remained quiet when he (Mohajeri) asked Shahat to comment or offer
feedback about Mohajeri’s performance. (See Tr. 284.) First, Mo-
hajeri’s testimony on that point was tentative in nature. Second, Sha-
hat’s detailed testimony about the concerns he presented to Mohajeri is
corroborated by Shahat’s July 11, 2016 complaint letter to human re-
sources, in which he noted speaking to Mohajeri about his concerns
regarding Mohajeri’s management approach and the manner in which
Mohajeri treated Shahat. (GC Exh. 9 (p. 1).)
cute,” and advised Mohajeri that he was having difficulty ad-
justing to Respondent’s standards and process. Yazid did not
provide any feedback or comments to Mohajeri about Mo-
hajeri’s performance as a manager when Mohajeri provided an
opportunity to do so in the evaluation meeting. (GC Exh. 3 (p.
5); Tr. 250–252, 329–330; see also R. Exh. 2 (describing some
of the performance issues that Yazid experienced between May
2015 and May 2016, such as inaccurate piping drawings that
required correction); Tr. 238–241, 243–245 (same, discussing
R. Exhs. 2, 5).
E. June 2016 – Yazid and the Change Notice Incident
1. June 7 – Yazid’s change notice mistake
In January 2016, Respondent was designing the piping for
two projects (the NTE projects) when a question arose about
whether the piping should be changed from S-80S stainless
steel piping to a thinner S-40S stainless steel piping. The pro-
posed change in piping was estimated to cost $23,800 per pro-
ject, for a total of $47,600. (R. Exh. 6 (pp. 3–12).) On Febru-
ary 2, 2016, however, Mohajeri advised the participants on the
NTE projects that Respondent would not change the piping,
and thus the S-80S piping would remain as the piping selected
for the project. Accordingly, piping group employees assigned
to the NTE projects prepared design drawings that (among
other things) specified S–80S piping. (R. Exhs. 6 (p. 13), 23
(drawings listing S–80S piping as one of the “shop materials”);
Tr. 421–423.)
On June 6, 2016, Yazid approached Deen and asked Deen to
approve an Engineering Change Notice (ECN) to switch the
piping on the NTE projects from the S–80S to S-40S piping
(Mohajeri was not available because he was on vacation at the
time). Yazid proposed the ECN because the piping fabricator
asserted that Mohajeri agreed to different piping earlier in the
year (Yazid was not copied on the January/February emails
about this issue). When Deen asked Yazid if he checked the
NTE project drawings to verify what piping was needed, Yazid
answered, “yes.” To avoid delaying the projects (and avoid
significant financial penalties that would result from any delay),
Deen approved the ECN and notified the NTE project manager
that new piping would need to be ordered (at a $47,600 cost
increase) due to an engineering error. (R. Exh. 25; GC Exh. 4
(indicating that Mohajeri was on vacation when Yazid spoke to
Deen about the ECN); Tr. 24–25, 193–195, 212–213, 242–243,
324–325, 415–421; see also R. Exh. 6.)
On June 7, Mohajeri returned to the office and Yazid in-
formed him about the ECN. Mohajeri reviewed the ECN and
determined that it was not necessary. Respondent accordingly
had Yazid notify the NTE project manager that the ECN was
canceled. Since Respondent canceled the ECN before the new
piping was ordered, Respondent avoided the $47,600 cost of
replacing the piping, but nonetheless lost some trust with the
project manager. (Tr. 24–25, 195–196, 213, 256–257, 419,
423, 425–426; R. Exhs. 6 (pp. 1–2), 25; see also GC Exh. 4.)
On June 8, Mohajeri confronted Yazid about the ECN mis-
take, and directed Yazid to provide a written statement about
why he recommended the ECN. Yazid, however, was reluctant
to write a statement because he believed Respondent was trying
to pin the incident on him and use it as a basis to get rid of
MITSUBISHI HITACHI POWER SYSTEMS AMERICAS, INC. 7
him.16 (Tr. 23–25, 196–198, 423–424; GC Exh. 4 (indicating
that Respondent also contemplated taking disciplinary action
against Yazid because of the ECN mistake); R. Exh. 25.)
After the meeting with Mohajeri, Yazid contacted Deen to
report that he had an issue with Mohajeri and wanted to speak
with Deen regarding grievances about Mohajeri, the ECN inci-
dent, and Mohajeri’s demand that Yazid write a statement.
Deen, however, directed Yazid to work these issues out with
Mohajeri. Ultimately, Yazid agreed to write a statement about
the ECN incident, but maintains that he did so under duress.
(Tr. 198–199, 424.)
2. June 8 – Yazid emails Hester to request a meeting
Later on June 8, 2016, Yazid sent the following email to hu-
man resources manager Julie Hester:
Julie,
I have [a] situation I would like to discuss with you.
Can I drop by?
Thanks,
Amasis Lakim Yazid
(GC Exh. 19.) Hester received Yazid’s email, but overlooked it
and did not respond. Although Yazid intended to give Hester a
grievance statement related to the change notice incident and
his concerns about Mohajeri’s management style, Yazid did not
attach the grievance statement to his June 8 email, or attempt to
contact Hester again to arrange a meeting. (Tr. 68, 199–200,
213–214, 343–344; see also GC Exh. 35 (Yazid’s grievance
statement, drafted on June 8, 2016, but not given to Respondent
until July 22, 2016.)
3. Respondent prepares to take action concerning Yazid
In light of the ECN incident, Mohajeri and Deen decided to
begin preparing a performance improvement plan (PIP) for
Yazid, who was already slated for a PIP in light of his overall
Needs Improvement rating from his May 2016 performance
evaluation. Hester provided Mohajeri with PIP paperwork on
June 8, and on June 28, Mohajeri began drafting the PIP for
Yazid. In the PIP, Mohajeri noted the ECN incident as one
example of Yazid’s performance issues. Mohajeri and Deen
planned to meet with human resources on July 11 to discuss the
PIP. (GC Exh. 5; R. Exhs. 2, 4; Tr. 25–26, 254–255, 326–329,
414; see also Tr. 30, 249, 327, 412 (noting that a PIP is stand-
ard procedure if an employee receives a Needs Improvement

16 Yazid testified that, in the June 8 meeting, he also told Mohajeri
that he (Mohajeri) had a belligerent and micromanaging style that
placed undue stress on Yazid and other piping group employees. Mo-
hajeri denies Yazid ever complaining about his management style.
(Compare Tr. 197–198 with Tr. 300.) I have not credited Yazid’s tes-
timony as to precisely what he said to Mohajeri on this point. First,
Yazid’s testimony and Mohajeri’s denial are equally credible, which
means that the General Counsel did not carry its burden of proving
what Yazid told Mohajeri in the meeting. Second, the evidentiary
record shows that Yazid tended to be rather circumspect in this
timeframe when he spoke to other managers (e.g., Deen and Hester)
about Mohajeri. Given that tendency, I cannot find by a preponderance
of the evidence that Yazid confronted Mohajeri using the language that
he described in his testimony.
rating on his or her performance evaluation).)
F. Early July 2016 – Shahat and the Cubicle Swap Dispute
On July 7, 2016, Mohajeri instructed Shahat to swap cubicles
with M.A., another employee in the piping group. When Sha-
hat responded that Mohajeri should provide a reason for the
swap, Mohajeri stated that the swap would enable the piping
group to have better communication and flow, and added that in
any event, Shahat needed to comply with Mohajeri’s directive
because refusing to comply would constitute insubordination.
Shahat responded that he would speak to Deen about the issue
before agreeing to swap cubicles.17 Later on July 7, Mohajeri
emailed Shahat and M.A. to instruct them to swap their cubi-
cles by the close of business on July 8. (GC Exhs. 16 (p. 2), 42;
R. Exh. 8; Tr. 139–142, 155, 157–160, 169, 172, 288, 291–292;
see also GC Exh. 13; Tr. 288–290, 445–446 (noting that Mo-
hajeri planned for several piping group employees to change
cubicles).)
After speaking with Shahat, Mohajeri notified Deen of the
dispute, and with Deen’s approval, drafted a disciplinary action
notice (dated July 8) to issue a written warning to Shahat for
insubordination. (R. Exh. 8; GC Exh. 13; Tr. 41–42, 292–293,
295, 448–449.) Mohajeri stated as follows in the draft discipli-
nary action notice:
Reason for Disciplinary Action: Due to the group expansion
and optimization, [Shahat] was informed by the manager that
he needs to change his office with another employee to make
the group’s flow and interactions more effective. The em-
ployee acknowledged that he clearly understood what [the]
manager was asking him to do but he repeatedly refused to
execute the task. He disregarded the manager’s direct request
and implied that the manager does not have the authority to
change his office. This is a repeated incident and clear sign of
insubordination (last incident was [on] June 3, 2015).
Recommendation: The previous incident (June 3, 2015) was
archived as [an] undocumented verbal notice to help the em-
ployee correct his actions and maintain/improve his profes-
sionalism. Since this is a recurring incident, it is decided that
this incident [is] to be archived as a written warning. If it is
repeated in [the] future again, progressive disciplinary action
will be taken.
(GC Exh. 13.)
Mohajeri did not issue, or tell Shahat about, the July 8 disci-
plinary action notice, initially because Shahat needed an oppor-
tunity to speak to upper management about the dispute, and

17 Shahat later explained (in a July 11 letter to human resources) that
he objected to the cubicle swap because he believed that Mohajeri had
been bullying and verbally abusing him in the workplace, and he be-
lieved that the proposed swap would make matters worse by relocating
Shahat to a cubicle across from Mohajeri’s office. (GC Exh. 16 (p. 2);
see also Tr. 141 (Shahat testified that, in addition to his concern about
being closer to Mohajeri’s office, he was comfortable in his existing
cubicle, which was quiet and next to a window).) There is no evidence
that Shahat told Mohajeri on July 7 that he didn’t want to move cubi-
cles because Mohajeri was mistreating him, but given the nature of that
explanation, it is not surprising that Shahat did not communicate it to
Mohajeri.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
later because Respondent decided to hold off on issuing the
disciplinary action notice altogether. Shahat, meanwhile, was
out sick on July 8, and thus did not swap cubicles on that date.
(Tr. 41–42, 142, 157–158, 172, 293–294; R. Exh. 8 (p. 2).)
G. July 11, 2016 – Shahat Submits Complaint about Mohajeri
On July 11, Shahat returned to work and scheduled a meet-
ing with Deen to discuss the cubicle swap dispute.18 Deen
advised Shahat that he should swap cubicles as Mohajeri in-
structed. (R. Exh. 28; Tr. 460.) Shahat then presented Deen
with a complaint letter that stated as follows:
Mr. Deen,
I feel compelled to bring to your attention my intentions, as I
have a great deal of respect for you and I am very much ap-
preciative for the employment opportunity and the progress of
my professional career I’ve gained, during my employment
with the company.
For the past 2 years, I’ve endured a great deal of disrespect,
and verbal abuse from Mr. [Mohajeri], this has escalated to a
point it’s affecting my wellbeing and quality of life, as I’m
always preoccupied, with what I may next encounter, and in
which way will he attack me next. This has robbed me from
enjoying a job I so much love and very much enjoyed during
my first year of employment under the directive of Matsuda
san.
I no longer enjoy my personal time off and weekends as I
walk on egg shells the 8 plus hours of my day, and worry of
what may await me when I’m back at work.
There’s other team member(s) that are also very much in con-
stant stress, due to the manner in which he communicates, at
times using intimidation to keep folks from coming forward
and reporting him. I am not at liberty to disclose name(s) of
the other employees, but will be asking HR to please conduct
an investigation.
At this point, not involving HR will be an injustice to myself
and to all the folks that have to deal with the bullying and har-
assment. The details of the incidents are in my formal com-
plaint letter to HR, [but] I wanted to inform you and provide
you with a copy of my written complaint, to keep you abreast
of the events that have led to my complaint as I don’t want
my complaint to be of surprise, should HR request to speak to
you on this matter.
(GC Exh. 15; see also R. Exh. 21 (Shahat’s complaint letter to
human resources, which Shahat also provided to Deen); Tr. 53,

18 I do not credit Deen’s testimony that he also met with Shahat on
July 7 about the cubicle swap dispute. (See Tr. 446–448, 457, 482–
483.) Deen’s credibility on this point is undermined by his Board affi-
davit, which was completed before the trial in this matter and at a time
closer to the events in question. In his affidavit, Deen said nothing
about meeting with Shahat on July 7. Instead, Deen explicitly stated in
his affidavit that Shahat met with him on July 11 to discuss the cubicle
swap dispute. (Tr. 482–485.) Second, Shahat credibly testified that he
only discussed the cubicle swap with Deen on July 11, the same day
that he gave Deen his complaint letters. (Tr. 160, 172–173, 496–497;
see also GC Exh. 16 (complaint letter dated July 11).)
125–126.)
As Deen reviewed Shahat’s letters, Shahat noted that other
people in the piping group felt the same way about Mohajeri.
Deen told Shahat that no other employee had come to him
about any issues with Mohajeri, but also acknowledged that
Shahat’s complaint raised serious issues. Accordingly, Deen
walked with Shahat to the human resources office to arrange
for Shahat to speak with Hester, and also to provide Hester with
a copy of Shahat’s letter to Deen. (Tr. 53–56, 71, 125–128,
148–149, 345–346, 461–463, 488–489; see also Tr. 468.)
In the meeting with Hester, Shahat presented a complaint let-
ter and supporting documents. (Tr. 345–346.) Shahat stated as
follows in his letter to human resources:
To the Department of Human Resources:
It has taken me some time to find the courage to lodge this
formal complaint against my manager, Mr. Arash Mohajeri,
but I can no longer deal with his abuse. Mr. Arash has been
bullying me and emotionally abusive towards me for the past
2 years which had become detrimental to my physical and
mental health.
I on May 19, 2016 spoke to Mr. Arash during my perfor-
mance appraisal evaluation meeting, regarding my concerns,
with his management approach, and manner in which he’s
treated me, since working under his directive. He advised
he’d take notes of my feedback, on our work relationship,
however the work relationship has worsen[ed] and it is now
taking a toll on my health and mental state of mind.
I am certain other team member(s) in my group are facing
similar issues with Mr. Arash, and [are] afraid to come for-
ward, in fear of retaliation and losing their jobs. I am not at
liberty to disclose name(s), but can ask an internal investiga-
tion is conducted.
The timeline of events below, [has] left me no choice but to
file this complaint in hopes that the Department of Human
Resources can aid me with this matter, and assist me with the
much needed aid in improving morale and my work environ-
ment:
[May 2015: Mohajeri declined Shahat’s request to
write a letter of recommendation for Shahat’s Masters
of Science in Engineering Management program, stat-
ing that his feedback wouldn’t be beneficial.]
[May 2015: Mohajeri advised Shahat that Shahat
needed to do some 3D modeling design work. When
Shahat expressed reluctance and suggested that an ex-
perienced designer should do the modeling instead of
an engineer such as Shahat, Mohaheri threatened Sha-
hat with possible termination and demanded that Sha-
hat sign a letter that supported Mohajeri’s view of the
dispute.]
[March 12, 2016: While attending a concert with
friends, Shahat encountered coworker B.J., and also
Mohajeri. In the presence of Shahat’s friends and B.J.,
Mohajeri asked Shahat what business he had at a Per-
sian event, and also asked whether Shahat was in-
MITSUBISHI HITACHI POWER SYSTEMS AMERICAS, INC. 9
volved with a Persian woman.]
[May 2016: Mohajeri told Shahat not to wear a par-
ticular pair of shoes because Mohajeri owned a pair al-
so, and thought it would be unpleasant if he and Shahat
wore the same shoes.]
[June 16, 2016: After Shahat did not catch some mis-
takes on drawings that he reviewed, Mohajeri became
enraged and verbally attacked Shahat by yelling at him
and ranting about being incompetent and careless with
his work.]
[July 6, 2016: Mohajeri asked Shahat why he signed a
coworker’s birthday card so close to where Mohajeri
signed the card, and asked Shahat whether he did so
because he thought he and Mohajeri were at the same
level.]
[July 7, 2016: the cubicle swap incident, about which
Shahat asked human resources to intervene because
the proposed swap would station Shahat in close prox-
imity to Mohajeri and potentially lead to more abuse.]
(R. Exh. 21; see also Tr. 71, 152–155, 304.)
In the approximately 30-minute meeting with Hester, Shahat
noted (among other things) that Mohajeri was rude and conde-
scending when giving direction, was not open to opinions or
suggestions about process improvements, and was bullying and
creating a hostile work environment. Shahat also noted that
other employees in the piping group felt the same way he did
(about Mohajeri’s conduct). Hester asked Shahat if he could
provide the names of any witnesses to the incidents that he
described, but Shahat declined to do so because he did not want
to get other employees in trouble. Hester acknowledged that
Shahat’s allegations were serious, assured Shahat that she
would thoroughly investigate his complaint, and advised Shahat
that he should not swap his cubicle until the investigation was
completed. (Tr. 71–72, 92, 128–129, 346–347, 349–351, 365;
R. Exh. 33 (Hester’s notes from her July 11 interview with
Shahat);
19
see also R. Exh. 21 (noting that Shahat was not at
liberty to disclose the names of witnesses).) Further, Respond-
ent decided not to take any disciplinary action against Shahat
regarding the cubicle swap dispute, to avoid the discipline ap-
pearing to be in retaliation for Shahat’s complaint. (R. Exh. 8
(July 12 entry); Tr. 33; see also Tr. 42, 105, 352–353 (noting
that Respondent also decided not to require Shahat to change
cubicles while Shahat’s complaint was being investigated).)
H. Mid–July 2016 – Managers Meet about Shahat and Yazid
1. Yazid’s performance improvement plan
On July 10, Mohajeri signed a performance improvement
plan for Yazid. The PIP indicated that, within six weeks, Yazid
needed to show improvement in the following areas:
(a) completing tasks in 3D with minimum supervision; (b) pick-
ing one task and driving it to a successful result with minimum

19 Although Hester and Shahat discussed all of the allegations in
Shahat’s complaint, Hester only wrote down notes about the aspects of
the complaint that she believed related to whether there was a hostile
work environment. (Tr. 347, 349–351; R. Exh. 33.)
supervision; (c) producing quality deliverables in both 3D and
projects-related products with a minimum of minor errors; (d)
understanding and tracking tasks and making progress on them
without constant supervision; and (e) taking ownership of,
troubleshooting and completing tasks with a minimum of minor
errors. (R. Exh. 4; Tr. 27, 238, 252–253, 326, 412–414.)
Deen and Mohajeri planned to meet with human resources
on July 11 to discuss Yazid’s PIP (before presenting it to
Yazid). However, on July 11, Deen postponed the meeting to
July 14 because human resources wanted to have a “broad
meeting regarding this issue.” (R. Exh. 2; Tr. 25, 27, 255, 329.)
2. July 14 & 19 – managers and human resources make deci-
sions about Shahat and Yazid
On July 14, Deen, Mohajeri, Shannon, director of plant engi-
neering Thangyah Schwartz and vice president of engineering
Carlos Koeneke met to discuss Shahat, Yazid and the “piping
group’s path forward.” (R. Exh. 39; see also R. Exhs. 2, 8 (July
11 and 12 entries reflecting the forthcoming July 14 meeting);
Tr. 33, 48.)
Regarding Shahat, the managers at the meeting were inclined
to discharge him because of Deen’s and Mohajeri’s recommen-
dations, Shahat’s performance issues (as documented by Mo-
hajeri), and the June 2015 and July 2016 disciplinary action
notices that Mohajeri prepared (but did not formally issue) for
Shahat. Shannon, however, stated that Respondent would take
no employment action until human resources finished investi-
gating Shahat’s complaint (to avoid seeming like Respondent
retaliated against Shahat because he filed a complaint). (R.
Exh. 39; Tr. 108, 389–390, 459, 464–465; see also Tr. 457
(regarding the decision that Shahat should be discharged, Deen
testified that he and Shannon agreed that Respondent needed to
“cut [its] losses and move on’).)20 As for Yazid, Deen and
Shannon decided to discharge him instead of implementing the
PIP that Mohajeri prepared. (Tr. 95, 258, 386–387, 415, 427.)
On July 19, the human resources department notified Mo-
hajeri that Yazid would be discharged soon, and thus Mohajeri
scheduled a meeting for July 22 to terminate Yazid’s employ-
ment. (R. Exh. 2 (July 19, 2016 entry); Tr. 26.) Although the
human resources department was still working on Shahat’s

20 In connection with my finding that Respondent decided to dis-
charge Shahat on July 14, I note that I do not credit Deen’s and Shan-
non’s testimony that they met on July 7 (immediately after the cubicle
swap dispute, and before Shahat submitted his complaint) and decided
that it was time to discharge Shahat. (See Tr. 387–388, 457–458, 487.)
Shannon’s credibility on this point is undermined by the fact that, in his
Board affidavit, Shannon stated that he did not decide to terminate
Shahat until October 2016, shortly before Shahat’s actual termination.
(Tr. 101–102, 401.) Further, to the extent that Deen and Mohajeri
maintain that Deen decided to discharge Shahat after the cubicle swap
dispute on July 7, that testimony is inconsistent with how Deen and
Mohajeri actually handled the cubicle swap dispute. Indeed, the evi-
dentiary record shows that Deen and Mohajeri agreed to write up a
written warning to discipline Shahat for insubordination concerning the
cubicle swap, but then decided to hold off on issuing the discipline
once Shahat submitted his complaint. (Tr. 295–296, 448–449, 487; GC
Exh. 13; R Exh. 8 (July 7, 11 & 12, 2016 entries).) The steps that Deen
and Mohajeri took towards disciplining Shahat on July 7 undercut the
proposition that Respondent decided to discharge Shahat at that time.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
complaint, Schwartz informed Mohajeri on July 19 that he
(Schwartz) and Shannon had agreed to let Shahat go. (R. Exh.
8 (July 19, 2016 entry); Tr. 33–34.)
I. July 22, 2016 – Respondent Discharges Yazid
1. The discharge meeting
On July 22, Respondent asked Yazid to come to the confer-
ence room for a meeting, at which Deen and Mohajeri told
Yazid that he was being discharged for poor performance (Hes-
ter was also present at the meeting). When Yazid asked for
more information, Mohajeri and Deen responded that they had
not seen an improvement in Yazid’s performance. Yazid
acknowledged that he and Mohajeri had discussions about
Yazid’s performance, but objected that there was no perfor-
mance plan or any other procedure in place to re-evaluate his
performance. In addition, Yazid objected that Hester did not
respond when Yazid tried to reach out to her (in his June 8
email) to discuss his concerns about Mohajeri. The managers
in the meeting did not respond to Yazid’s objections. (Tr. 18,
28, 49–52, 67, 77, 95, 200–204, 258–259, 387, 428; GC Exh.
23.)
After the discharge meeting, Hester escorted Yazid to his
desk to collect his belongings. When Hester said she was sorry
that it had come to this (Yazid’s discharge), Yazid said that it
was a little too late for that, and added that he was not the only
one in the piping group who had grievances concerning Mo-
hajeri. Hester asked Yazid to send her the grievance and the
names of any other employees who experienced similar treat-
ment because Respondent takes such matters seriously and
would conduct an investigation. (Tr. 204–206; see also Tr.
67–68, 205, 344 (indicating that at some point on July 22, Hes-
ter reviewed her emails and located Yazid’s June 8 email re-
quest for a meeting); GC Exh. 19 (Yazid’s June 8 email).)
2. Yazid submits his grievance statement
In the evening after his discharge on July 22, Yazid emailed
Shannon and Hester to provide a copy of his grievance state-
ment. (Tr. 69–70, 206–207, 345; GC Exhs. 20, 35.) Yazid
stated as follows in his email:
Mr. Shannon & Ms. Hester,
I would like to express my appreciation for the opportunity at
MHPSA.
I would have liked things to work out differently. Having ex-
pressed my appreciation for the opportunity, I feel that there
was never a plan of action implemented from my perfor-
mance review in place to measure my performance standard
and this is why I wanted to express my concerns to you about
some practices and concerns I had before this unjust of course
of action took place. I have tried to reach out to HR and man-
agement to express my concerns with no follow up.
Arash Mohajeri has been operating in a [manner] that has put
the whole team in a stressful and uncomfortable situation
through his abrasive tactics, harassment and personnel prefer-
ences without any clear defined process or standards to adhere
to.
I would have thought this course of action would be unac-
ceptable and there would be some measurements in place to
gauge an [employee’s] work performance to see if the status
quo has been met after a probationary period which was never
clearly defined, nevertheless; the personal attack of his way or
the high way has validated his actions.
I am attaching my grievance for your review and records that
I tried to express prior to this ambush.
(GC Exh. 20.)
Yazid attached his grievance statement (dated June 8) to his
July 22 email. Yazid stated as follows in his grievance state-
ment (in pertinent part):
I was urged under duress to [write] a statement on the steps
and conclusions I came to, to execute an engineering change
request in the amount of $23,800 regarding a pipe schedule
change from schedule 80 to schedule 40. . . . I was made to
feel as though my career was on the line the approach Arash
took in pulling me in a conference room and manipulating a
situation into a more over blown ordeal than it was.
In February of this year . . . I was tasked to manage the NTE-
Projects . . . however, I expressed concerns that I didn’t have
the resources to execute effectively according to the MDL-
Schedule. . . . When attempting to rely on team members
with prior experience, I was left with little support and guid-
ance from Arash in the beginning stages of the project . . . .
Because of the overwhelming pressure and constant harass-
ment of why documents [were] not correct, it affected my
mental and physical health in ways I’ve never experienced be-
fore. Consequently, I was hospitalized by my doctor due to
high blood pressure and chronic back pain as a result of the
environment he (Arash) put me in. I was not given adequate
help and or instruction how to manage the project with a sys-
tem I was still trying to familiarize myself with.
During the same time frame other team members had ade-
quate assistance to facilitate and manage their projects. At
least two to three members were assigned to help with other
projects running simultaneously. I had to fend for myself and
because of the mistakes made, he held that against me and in-
cluded the defects in my performance review. I expressed my
concerns and disagreed with his views because he didn’t take
into account the learning curve and lack of support I was giv-
en to execute properly.
Arash’s constant micro management, personal preferences
and comparisons to be like other team members, creates a
tense environment. Singling members out by taking them in-
to a conference room almost weekly and berating them about
their performance is not professional and shows poor leader-
ship qualities. A leader should have clearly defined proce-
dures and give his or her team the tools and assistance they
need to execute effectively in order to hold persons accounta-
ble for defects.
Consequently, this approach has created a high stress, high
tense and unhealthy working environment.
(GC Exh. 35; Tr. 97, 206–207.)
MITSUBISHI HITACHI POWER SYSTEMS AMERICAS, INC. 11
3. Human resources’ response to Yazid’s email and grievance
Shannon received Yazid’s July 22 email and grievance
statement while he (Shannon) was on a business trip. After
reading the email on his cell phone, Shannon mistook the email
as coming from Shahat, and sent the following reply to Yazid:
Your claim has been taken and in due time Ms. Hester will
perform an investigation. These things do not happen over-
night but are taken very seriously. We have started the inves-
tigation report taking to management. Keep in mind to do a
thorough investigation you will have to divulge those who
you have mentioned in your claim. Without the ability to
speak to them it is your word against your manager.
(GC Exh. 33; see also Tr. 97–98, 206–207, 391–392.)
Later, Shannon learned that Yazid submitted the complaint
email and grievance on July 22. Shannon, however, decided
not to investigate Yazid’s complaint because he believed Yazid
was merely a disgruntled employee who was attempting to get
back at Mohajeri. (Tr. 98, 207–208, 369–370, 392.) Hester,
meanwhile, did not respond to Yazid’s July 22 email and griev-
ance because she deferred to Shannon to handle the matter.
(Tr. 70, 369.)
J. July–September 2016 – Respondent’s Investigation of
Shahat’s Complaint
After completing her intake interview with Shahat about his
July 11 complaint, Hester notified Shannon about the com-
plaint. Shannon tasked Hester with investigating the complaint
under his supervision, and the two of them collaborated about
how the investigation would proceed. As part of that discus-
sion, Shannon suggested that Hester ask Deen and Mohajeri to
provide written responses to Shahat’s complaint, and also sug-
gested that Hester set up interviews with Deen and Mohajeri to
get their side of the story. (Tr. 73, 104–105, 352, 380, 393.)
On or about July 26, Shannon saw Shahat in the hallway and
asked Shahat to email him a copy of Shahat’s July 11 com-
plaint. Shannon added that Respondent takes such allegations
seriously and would conduct a full investigation. Later in the
day, Shahat emailed Shannon copies of his (Shahat’s) July 11
letters to Deen and the human resources department. (Tr. 102–
103, 129–130, 393; GC Exh. 34.) Shannon responded by send-
ing the following email to Shahat:
We are going to start our investigation that will involve dis-
cussions with both Arash and Phil. From there we will talk to
you. I have to be back in Canada all next week but if needed I
will have Julie talk to you next week. Once I return I will re-
view all the information from the interviews and make a deci-
sion on how we move forward.
(GC Exh. 34; see also Tr. 103–104.)
On August 9, Shannon emailed Mohajeri and asked him to
review Shahat’s complaint and send written responses to the
allegations.21 Mohajeri agreed to do so, and sent his responses
to Shannon on August 11. (R. Exhs. 8, 15; Tr. 34–35, 73, 304,
309, 366.) Mohajeri stated as follows in his responses to the
complaint:

21 The 1 month delay between Shahat’s complaint and Respondent’s
requests for responses from Deen and Mohajeri resulted, in part, from
the fact that the human resources department was transitioning to a new
payroll system (a transition that Hester was involved with), and in part
from scheduling issues related to Shannon’s and the managers’ busy
calendars. (Tr. 103–104, 353, 393.)
Allegation from Shahat’s Complaint Mohajeri’s Response
Other team members in the piping group are facing similar
issues with Mohajeri
“There is an open door policy in engineering group at all
levels of management. I have always encouraged the team
members to communicate with me any concerns they have that
they need to discuss.”
Mohajeri’s May 2015 refusal to write a letter of recommen-
dation for Shahat
[Mohajeri reviewed the questionnaire and determined that
he could not answer some of the questions because he had not
worked long enough with Shahat. Mohajeri explained this to
Shahat and suggested that Shahat ask Deen to provide the ref-
erence.]
May 2015 dispute about Shahat doing 3D modeling work [3D modeling work is part of Shahat’s job duties. Shahat
received a week long training course to ensure he had the nec-
essary skills to do the 3D modeling work. Due to a high work-
load and limited manpower in the piping group, Mohajeri
asked Shahat to do some 3D modeling work. When Shahat
resisted, Mohajeri drafted a disciplinary action form, but did
not submit the form to human resources when Shahat agreed to
do the 3D modeling assignment.]
March 12, 2016 – while at a concert on the weekend, Mo-
hajeri saw Shahat and asked why Shahat was at a Persian
event, and also asked if Shahat was involved with a Persian
woman
“I did meet the employee at the concert and had a short cas-
ual talk. There was no improper or unethical conversation
during the encounter.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
Allegation from Shahat’s Complaint Mohajeri’s Response
May 2016 -- Mohajeri advised Shahat not to wear a certain
pair of casual shoes because Mohajeri owned a pair also
“I’m a professional in my career with a proven track record
of treating people with respect and commitment to the corpo-
rate code of conduct.”
June 16, 2016 – Mohajeri verbally attacked Shahat after
Shahat submitted drawings that contained some mistakes
[Shahat was the reviewer of the drawings and thus was re-
sponsible for catching any mistakes. Shahat has committed
similar errors in the past despite meetings regarding his per-
formance and various opportunities to review his work and
correct mistakes. Shahat has responded that this is the best that
he can do.]
July 6, 2016 – Mohajeri asked why Shahat signed his name
in close proximity to Mohajeri’s name on a birthday card for a
coworker
“I’m a professional in my career with a proven track record
of treating people with respect and commitment to the corpo-
rate code of conduct.”
July 7, 2016 – the cubicle swap dispute [The cubicle swap was approved by upper management as a
strategy to improve efficiency and communication in the pip-
ing group. Shahat refused to swap cubicles until he discussed
this issue with upper management.]
(R. Exh. 15; see also Tr. 43–44, 306–309.)
In the same time period, Deen provided human resources
with his responses to the assertions in Shahat’s complaint letter
to Deen. Deen reported that he never witnessed Mohajeri direct
any disrespectful language, verbal abuse, intimidation or bully-
ing behavior towards Shahat or any other employee. To the
contrary, Deen observed Mohajeri treat others in a professional
manner, and noted that although he (Deen) has an open door
policy, none of the employees in the piping group has ever
expressed concerns to him about how Mohajeri treats them.
(GC Exh. 17; Tr. 56–57, 73, 359, 366, 468–469.)
On or about August 11, Hester met with Deen and Mohajeri
for a 30–60 minute group discussion about Shahat’s complaint
and the piping group. Hester asked Mohajeri some general
questions about the piping group and how he might handle
certain situations. Deen and Mohajeri also expressed surprise
and disappointment that Shahat submitted a complaint, and
agreed that there wasn’t any information to substantiate Sha-
hat’s allegations (which they viewed as petty in nature).22 (Tr.
35, 57, 73, 353, 357, 470–471; see also Tr. 394.)
Finally, Hester reviewed two policy documents as part of her
investigation. Specifically, Hester reviewed Respondent’s anti
harassment policies, and also reviewed a document titled “What
do I need to know about workplace harassment” that the United

22 During trial, I excluded handwritten notes that Hester wrote after
the August 11 meeting with Deen and Mohajeri. (R. Exh. 34 (rejected
exhibit)).) As I explained, even if the notes qualified as a business
record, the notes contained inadmissible hearsay in the form of Hester’s
written notes about what the managers said at the meeting. I also indi-
cated that, to the extent that Respondent wished to present evidence
about what was said in the meeting and/or Respondent’s state of mind
about the merits of Shahat’s complaint, it could simply call Deen or
Mohajeri to the stand to testify about that issue (Deen and Mohajeri
testified at trial, and Deen was present for the entire trial as Respond-
ent’s designee) and/or rely on Hester’s final report about the investiga-
tion. (Tr. 354–357, 371–372.) In short, I excluded Hester’s notes as
inadmissible hearsay, and also as cumulative of other evidence con-
cerning Respondent’s (and Deen’s & Mohajeri’s) state of mind con-
cerning Shahat’s complaint. I stand by that ruling, and thus Respond-
ent’s Exhibit 34 will remain in the rejected exhibits file.
States Department of Labor (DOL) posted on its website to
provide DOL employees with an overview of the types of un-
lawful harassment, as well as a description of the DOL’s work-
place harassment policy.23 (R. Exh. 35; Tr. 358–360, 366, 368;
see also Tr. 394.)
Hester and Shannon did not take any of the following steps
to investigate Shahat’s complaint: (a) conduct a followup inter-
view with Shahat; (b) interview Yazid or otherwise consider or
investigate Yazid’s July 22 email and grievance (which includ-
ed allegations that Mohajeri improperly subjected employees to
harassment); (c) conduct one-on-one interviews with Mohajeri
and Deen; or (d) interview any other employees in the piping
group to determine if they could provide any information that
might shed light on the merits of the allegations in Shahat’s
complaint. (Tr. 73–74, 139, 358, 367, 394, 470.) As to why
they did not interview any other members of the piping group,
Shannon and Hester asserted that Shahat did not provide them
with the names of any employees who witnessed or experi-
enced any misconduct by Mohajeri, and also asserted that Sha-
hat’s complaint primarily raised personal disputes between
Shahat and Mohajeri. (Tr. 358, 394.)
K. June–September 2016 – Ongoing Friction between Shahat
and Mohajeri
1. Shahat’s work performance
Between June and September 2016, Shahat continued to
make errors in some of his work assignments, including failing
to catch mistakes in piping drawings before approving them as
ready for use (for purchasing and fabrication), and having trou-
ble keeping up with his workload. As an example, on certain
projects, Shahat was assigned as the reviewer, and thus was
responsible for ensuring that the piping drawings were error

23 I pause here to note that the DOL is not the agency that enforces
Title VII of the Civil Rights Act of 1964 (Title VII, the statute that,
among other things, prohibits unlawful harassment based on race, color,
sex, national origin or religion). Instead, the U.S. Equal Employment
Opportunity Commission (EEOC) enforces Title VII and issues guid-
ance on what may constitute unlawful workplace harassment. (See,
e.g., https://www.eeoc.gov/laws/types/harassment.cfm (EEOC over-
view of harassment as a form of employment discrimination).)
MITSUBISHI HITACHI POWER SYSTEMS AMERICAS, INC. 13
free (regardless of whether Shahat or another piping group
employee made the error). When Mohajeri noticed errors that
Shahat did not catch as the reviewer, Mohajeri had to return the
drawings to the piping group for correction, thereby slowing
down work on that and other projects. Mohajeri coached Sha-
hat about these problems (verbally and via email), but there is
no evidence that Mohajeri sought to take disciplinary action
against Shahat or place Shahat on a performance improvement
plan because of these issues. At trial, Mohajeri acknowledged
that multiple engineers work on projects and can identify and
correct mistakes, and also acknowledged that, even with multi-
ple engineers looking at drawings, mistakes can still be present
when the drawings reach Mohajeri for final approval. (R. Exhs.
8 (June-August 2016 entries), 12, 13, 14 (pp. 5–10); GC Exhs.
9 (pp. 2–3), 43–44; Tr. 60, 267–273, 314–324, 330–331, 481.)
2. Mohajeri’s concerns about private meetings with Shahat
After Shahat filed his complaint in July 2016, Mohajeri de-
veloped a concern about how to handle private meetings with
Shahat in light of the complaint and ongoing investigation. At
the suggestion of Deen and human resources, Mohajeri advised
Shahat that they should have a witness present (e.g., a repre-
sentative from human resources) if Shahat desired a private
meeting to discuss his career path or promotion opportunities.24
(Tr. 35, 303–304, 469–470; see also R. Exh. 8 (entry following
August 30, 2016); Tr. 132.)
L. September 2016 – Respondent Determines that Shahat’s
Complaint Cannot be Substantiated
On September 22, 2016, Hester completed her investigation
and filed a report finding that there was no merit to Shahat’s
complaint that Mohajeri subjected him to a hostile work envi-
ronment. Instead, Hester characterized the conflict between
Mohajeri and Shahat as simply a personality clash. (GC Exh.
21; see also Tr. 75, 361–364, 367–368, 471.) Hester’s report
stated, in pertinent part, as follows:
Executive Summary
This is a matter concerning allegations of the existence of a
“hostile work environment” at MHPSA in Lake Mary, Flori-
da. After an inquiry team: (i) conducted interviews with the
employee raising the claim [ ] and the employee alleged to
have created the hostile work environment [ ]; (ii) reviewed
documentation from [Shahat and Mohajeri]; and
(iii) reviewed relevant corporate policies and legal basis with
the legal department for such a claim, it is the conclusion of

24 Shahat testified that in August 2016, Mohajeri asked Shahat to
come to the conference room for a one-on-one discussion, during which
Mohajeri aggressively told Shahat that he (Shahat) should make sure
there is a witness present if he wanted to speak to Mohajeri. Shahat
also testified that Mohajeri told him that they would see who wins
regarding Shahat’s complaint to human resources, and warned Shahat
that he would be in huge trouble if he discussed the complaint with
anyone in the piping group. (Tr. 130–132.) Mohajeri denied talking to
Shahat about the complaint or warning Shahat (or anyone else) about
discussing the complaint with others. (Tr. 301–303; see also Tr. 252.)
I found Shahat and Mohajeri to be equally credible on this topic – since
the General Counsel bears the burden of proof and did not meet that
burden, I have credited Mohajeri’s testimony on this point.
the team that there is no merit to the claim based on the mate-
rial provided and reviewed. The critical element necessary to
validate such a claim was [conduct] both subjectively and ob-
jectively “pervasive and severe.”25 There was no evidence in
the interviews or documentation provided that supported a
claim that the work climate was objectively pervasive or se-
vere. It is on that basis that the team composed of Project En-
gineering & Quality Vice President, Engineering Manage-
ment, and Human Resources finds no merit for the claim
raised. It is the opinion of the team that the issue between the
two employees is a personality clash based on different inter-
personal styles. . . .
Analysis of Results
. . . The employees interviewed were all aware of the rela-
tionship issues between the two key parties. All employees
interviewed acknowledged, to varying degrees, that the matter
was concerning the two personalities involved. Mr. Shahat
expressed a genuine concern for his job security due to his
performance appraisal evaluations and almost being written
up for insubordination. He also felt that he needed aid in im-
proving morale and his work environment. He did express
being “frustrated” with the working situation and what Mr.
Shahat described as Mr. Mohajeri’s management style. Mr.
Shahat did not, however, except for one reference to an ele-
vated blood pressure, indicate that the actions of Mr. Mohajeri
had a material impact on Mr. Shahat or interfered with Mr.
Shahat’s ability to perform his job, impacted his job perfor-
mance in any measurable way, or otherwise amounted to a
distraction in his working situation, as it related to interaction
with Mr. Mohajeri.
Both employees provided data that each believed was relevant
to their respective positions on the issue at hand. After a re-
view of both sets of documents, it is my opinion that the mate-
rial provided demonstrates that Mr. Shahat may be concerned
for his job due to his own performance issues since he states
that Mr. Mohajeri has been disrespecting him for the past 2
years, but is now filing a complaint in hopes to solidify his
employment since he was just put on a performance im-
provement plan.26

25 I pause again to note that under Title VII, a claim of workplace
harassment is actionable if, among other factors, the harassment is
“sufficiently severe or pervasive ‘to alter the conditions of [the vic-
tim’s] employment and create an abusive working environment.” Meri-
tor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986) (emphasis added).
To the extent that Respondent’s investigation report states that alleged
harassing conduct must be “severe and pervasive” or “severe and per-
sistent,” I note that those formulations are incorrect. (See GC Exh. 21
(pp. 1, 3); see also R. Exh. 35 (printout from DOL website that uses
both the correct “severe or pervasive” terminology and the incorrect
“severe and pervasive” terminology); Tr. 361 (Hester testimony using
the “severe and persistent” terminology). I emphasize that I provide
this information for clarification only -- the merits of this case do not
turn on whether Respondent accurately stated Title VII’s legal princi-
ples.
26 The assertion that Shahat was on a performance improvement
plan is incorrect. Respondent did not place Shahat on a PIP at any time
during his employment. (Tr. 31, 52–53, 60, 137, 481.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
Findings
This complaint has not, however, proven out, based on the in-
formation collected or provided. The allegations appear to be
based on an internal clash of personality styles between two
employees. After talking to Mr. Mohajeri and the other man-
agers of the team, they have made every attempt to accom-
modate Mr. Shahat and his working environment by provid-
ing training, coaching, and even the offer to transfer into an-
other department[.]
(GC Exh. 21.) Having found that Shahat’s complaint about
Mohajeri could not be substantiated, Shannon and Deen agreed
to move forward with discharging Shahat for poor performance
(including insubordination). (Tr. 57–58, 75–76, 99–102, 105,
296–297, 361, 387, 390, 399–400, 463; see also Tr. 464–465
(noting that on July 14, Respondent put its plans to terminate
Shahat on hold until Shahat’s complaint was resolved).)
M. October 13, 2016 – Respondent Discharges Shahat
On October 13, Mohajeri arranged a meeting for Shahat,
Deen, Hester and Shannon in the piping group conference room
(Mohajeri could not attend because he was leaving for a busi-
ness trip). At the meeting, Shannon notified Shahat that he
(Shahat) was being discharged for poor performance. When
Shahat asserted that he was being discharged because of Mo-
hajeri, Shannon said no and reiterated that Respondent was
discharging Shahat for poor performance.27 Shannon and Hes-
ter then brought Shahat the personal items from Shahat’s desk,
and Koeneke (who had joined the meeting) escorted Shahat to
his car. (Tr. 29, 52, 58–60, 76, 99, 105–107, 132, 134–137,
297–298, 390–391, 465–466; R. Exh. 8 (Oct. 13 entry); GC
Exh. 22.)
N. Comparator Evidence
As one tool for keeping track of employee performance,
coachings and other issues, Mohajeri makes entries on a time-
line/log for the employee in question, generally by typing in the
date that an issue arose and a description of the issue and how it
was addressed (e.g., by a coaching). Out of the approximately
10 employees in the piping group, Mohajeri kept a log for Sha-
hat, Yazid and three other employees in 2015 and 2016. Mo-
hajeri did not keep a log for any other piping group employees
in that time period because Mohajeri generally used logs to
record major or noteworthy issues, but not smaller issues (i.e.,
if an employee did not have any major performance issues, then
Mohajeri would not create a log for that employee). Of the five
logs in the evidentiary record, Shahat’s and Yazid’s logs had
the most entries (18 entries for Yazid and 31 for Shahat, com-
pared to 2–4 entries on the logs for the other three employees).
(Tr. 22–23, 31–34, 229–230, 298–300, 330–336; R. Exhs. 2, 8,
20.)
28

27 The participants in the meeting disagree about whether Shannon
also told Shahat that Respondent did not find any merit to Shahat’s
complaint, but that factual dispute is not material to my analysis.
(Compare Tr. 105–106, 394–395 with Tr. 135–136.)
28 The General Counsel also presented evidence about four other
employees that Respondent terminated for performance-related reasons.
The comparators worked in a variety of positions outside of the piping
Applicable Legal Standards
A. Witness Credibility
A credibility determination may rely on a variety of factors,
including the context of the witness’ testimony, the witness’
demeanor, the weight of the respective evidence, established or
admitted facts, inherent probabilities and reasonable inferences
that may be drawn from the record as a whole. Farm Fresh
Co., Target One, LLC, 361 NLRB 848, 860 (2014); see also
Roosevelt Memorial Medical Center, 348 NLRB 1016, 1022
(2006) (noting that an administrative law judge may draw an
adverse inference from a party’s failure to call a witness who
may reasonably be assumed to be favorably disposed to a party,
and who could reasonably be expected to corroborate its ver-
sion of events, particularly when the witness is the party’s
agent). Credibility findings need not be all-or-nothing proposi-
tions — indeed, nothing is more common in all kinds of judi-
cial decisions than to believe some, but not all, of a witness’
testimony. Farm Fresh Co., Target One, LLC, 361 NLRB at
860. My credibility findings are set forth above in the findings
of fact for this decision.
B. Protected Concerted Activity for the Purpose of Mutual Aid
or Protection
To be protected under Section 7 of the Act, employee con-
duct must be both “concerted” and engaged in for the purpose
of “mutual aid or protection.” Although these elements are
closely related, Board precedent makes clear that they are ana-
lytically distinct, and also makes clear that the elements must
be analyzed under an objective standard (such that an employ-
ee’s subjective motive for taking action is irrelevant). Fresh &
Easy Neighborhood Market, 361 NLRB 151, 152–153 (2014).
As the Board has explained, concerted activity includes not
only activity that is engaged in with or on the authority of other
employees, but also activity where individual employees seek
to initiate or to induce or to prepare for group action, as well as
individual employees bringing truly group complaints to the
attention of management. Fresh & Easy Neighborhood Mar-
ket, 361 NLRB at 153; see also Meyers Industries, 268 NLRB
493, 497 (1984), remanded sub nom. Prill v. NLRB, 755 F.2d
941 (D.C. Cir. 1985), cert. denied 474 U.S. 971 (1985), sup-
plemented Meyers Industries, 281 NLRB 882, 887 (1986), affd.
sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert.
denied 487 U.S. 1205 (1988). Notably, the requirement that, to
be concerted, activity must be engaged in with the object of
initiating or inducing group action does not disqualify merely
preliminary discussion from protection under Section 7. In that
regard, the Board has observed that inasmuch as almost any
concerted activity for mutual aid or protection has to start with
some kind of communication between individuals, it would
come very near to nullifying the rights of organization and

group, and were terminated because of a variety of performance issues.
(See Tr. 77–87; GC Exhs. 24–32; see also GC Posttrial Br. at 37.) I
have given little weight to this comparator evidence because the Gen-
eral Counsel did not establish that these comparators were similarly
situated to Shahat and/or Yazid, and also did not show that Respondent
treated the comparators differently (in a meaningful way) than Shahat
and Yazid.
MITSUBISHI HITACHI POWER SYSTEMS AMERICAS, INC. 15
collective bargaining guaranteed by Section 7 of the Act if such
communications are denied protection because of lack of frui-
tion. In addition, the Board has recognized that the activity of a
single employee in enlisting the support of his or her fellow
employees for their mutual aid and protection is as much ‘con-
certed activity’ as is ordinary group activity. Fresh & Easy
Neighborhood Market, 361 NLRB at 153; see also Whittaker
Corp., 289 NLRB 933, 933 (1988) (explaining that the object
or goal of initiating, inducing or preparing for group action
does not have to be stated explicitly when employees com-
municate).
The concept of “mutual aid or protection” focuses on the
goal of concerted activity; chiefly, whether the employee or
employees involved are seeking to improve terms and condi-
tions of employment or otherwise improve their lot as employ-
ees. In short, proof that an employee action inures to the bene-
fit of all is proof that the action comes within the ‘mutual aid or
protection’ clause of Section 7. The Board has explained that
this holds true even if the employee who asks for support from
coworkers in addressing an issue with management would re-
ceive the most immediate benefit from a favorable resolution of
the issue. Specifically, under principles of solidarity, an em-
ployee who solicits assistance from coworkers to raise his or
her issues to management is requesting that his coworkers exer-
cise vigilance against the employer’s perceived unjust practic-
es. The solicited employees, meanwhile, have an interest in
helping the aggrieved employee — even if the aggrieved em-
ployee alone has an immediate stake in the outcome — because
the next time it could be one of them that is the victim. Fresh
& Easy Neighborhood Market, 361 NLRB at 153, 155–156.
C. Section 8(a)(1) Allegations
Section 8(a)(1) of the Act makes it unlawful for an employer
(via statements, conduct, or adverse employment action such as
discipline or discharge) to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in Section 7.
The test for evaluating whether an employer’s conduct or
statements violate Section 8(a)(1) of the Act is whether the
statements or conduct have a reasonable tendency to interfere
with, restrain or coerce union or protected activities. Farm
Fresh Company, Target One, LLC, 361 NLRB at 860 (noting
that the employer’s subjective motive for its action is irrele-
vant); Yoshi’s Japanese Restaurant & Jazz House, 330 NLRB
1339, 1339 fn. 3 (2000).
To prove that an adverse employment action violates Section
8(a)(1) of the Act, the General Counsel must demonstrate that:
the employee engaged in activity that is “concerted” within the
meaning of Section 7 of the Act; Respondent knew of the con-
certed nature of the employee’s activity; the concerted activity
was protected by the Act; and Respondent’s adverse action
against the employee was motivated by the employee’s protect-
ed, concerted activity. Global Recruiters of Winfield, 363
NLRB No. 68, slip op. at 16 (2015); Lou’s Transport, Inc., 361
NLRB 1446, 1447 (2014), enfd. 644 Fed.Appx. 690 (6th Cir.
2016); Correctional Medical Services, 356 NLRB 277, 278
(2010); see also Medic One, Inc., 331 NLRB 464, 475 (2000)
(noting that “[e]vidence of suspicious timing, false reasons
given in defense, failure to adequately investigate alleged mis-
conduct, departures from past practices, tolerance of behavior
for which the employee was allegedly fired, and disparate
treatment of the discharged employees all support inferences of
animus and discriminatory motivation”). If the General Coun-
sel satisfies the initial burden of showing of discrimination,
then the burden shifts to Respondent to present evidence, as an
affirmative defense, demonstrating that it would have taken the
same action even in the absence of the employee’s protected
activity. See Global Recruiters of Winfield, 363 NLRB No. 68,
slip op. at 16; Timekeeping Systems, Inc., 323 NLRB 244, 244
(1997).
Discussion and Analysis
A. Did Respondent Violate the Act when it Prepared (and Lat-
er Considered) a Disciplinary Notice for Shahat on July 8,
2016, after the Cubicle Swap Dispute?
1. Complaint allegation
The General Counsel alleges that Respondent violated Sec-
tion 8(a)(1) of the National Labor Relations Act (the Act) by
issuing a disciplinary notice to Shahat on or about July 8, 2016,
because he engaged in protected concerted activities, and to
discourage employees from engaging in those or other protect-
ed concerted activities. (GC Exh. 1(g) (pars. 6(a), (d)).)
2. Analysis
The evidentiary record shows that on July 8, 2016, Mohajeri
(with Deen’s approval) prepared a disciplinary action notice to
issue a written warning to Shahat for refusing to swap cubicles
as instructed. Mohajeri stated in the disciplinary action notice
that Shahat’s refusal to swap cubicles was a form of insubordi-
nation, and noted that Shahat engaged in similar insubordinate
behavior in June 2015 when Shahat initially refused to do a 3D
modeling assignment. Ultimately, Mohajeri did not issue the
July 2016 disciplinary action notice to Shahat because Shahat
filed his complaint with human resources on July 11, and Re-
spondent did not want the discipline to appear to be in retalia-
tion for Shahat’s complaint. (FOF, Section II(F)–(G).)
By July 8, 2016, Shahat already had engaged in concerted
activity by speaking with some of his coworkers on multiple
occasions about Mohajeri’s management style, which they
viewed as aggressive and abrasive. In addition, at the end of
his May 2016 performance evaluation, Shahat expressed some
of these group concerns to Mohajeri, by telling Mohajeri that he
(Mohajeri) treats Shahat and certain other employees different-
ly than the rest of the piping group, and by stating that Mohajeri
had an aggressive, abrasive and micromanaging style that was
creating a stressful environment for the group. (FOF, Section
II(C)(4), (D)(1).)
The General Counsel relies on a somewhat novel theory for
why the July 8, 2016 discipline was discriminatory. Specifical-
ly, the General Counsel argues that the July 8, 2016 discipli-
nary action notice was initially just an unofficial memo that
Respondent never issued; however, when Shannon relied on the
July 8 disciplinary action notice to support his July 14 decision
that Shahat should be discharged, Respondent unlawfully con-
verted the unofficial July 8 notice into formal discipline be-
cause of Shahat’s protected concerted activities (such as Sha-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
hat’s July 11 complaint about Mohajeri).29 (GC Posttrial Br. at
37–38.)
Although Shannon admitted that he considered the July 8,
2016 disciplinary action notice as a factor in his decision to
discharge Shahat, that admission does not render the discipli-
nary action notice unlawful. First, I find that the July 8 disci-
plinary action notice was a reasonable and measured response
to Shahat’s refusal to swap cubicles, and was a response that
Respondent would have taken irrespective of Shahat’s protect-
ed concerted activities. There is no dispute that on July 7,
2016, Shahat refused to move his cubicle when directed to do
so. Mohajeri deemed Shahat’s refusal an act of insubordina-
tion, and Mohajeri’s and Deen’s decision to prepare the July 8,
2016 disciplinary action notice to warn Shahat about further
insubordinate conduct was fully consistent with how they han-
dled Shahat’s June 2015 refusal to accept a 3D modeling as-
signment (an incident that occurred well before Shahat engaged
in any protected concerted activity that Respondent was aware
of).30 (See FOF, Section II(C)(2).)
Second, I am not persuaded by the General Counsel’s argu-
ment that it was improper for Respondent (through Shannon) to
consider the July 8, 2016 disciplinary action notice as a factor
in its decision to discharge Shahat. There is nothing wrong, per
se, with an employer retaining information about informal or
unofficial employee reprimands for future use (although that
practice may convert the informal action into a form of disci-
pline).31 Further, the General Counsel did not show that there

29 The General Counsel asserts that Respondent treated the June 3
and 5, 2015 disciplinary action notices in a similar fashion. There is no
complaint allegation concerning the June 3 and 5, 2015 disciplinary
action notices.
30 To the extent that Shahat drew a line in the sand about swapping
cubicles because he hoped to protest Mohajeri’s management style, that
intent was not at all clear on July 7–8. Instead, the cubicle swap inci-
dent appeared to be a stand-alone issue, and Respondent understanda-
bly treated it as such. To be sure, Shahat subsequently connected the
dots (between the cubicle swap dispute and Mohajeri’s management
style) in his July 11 complaint, but by that time, Respondent already
had prepared the July 8 disciplinary action notice.
31 The Board has held that verbal warnings, coachings and repri-
mands are forms of discipline if they are part of a disciplinary process
(e.g., a progressive disciplinary system) and lay a foundation for future
disciplinary action against the employee. See Alter Care of Wadsworth
Center for Rehabilitation, 355 NLRB 565, 565–566 (2010); Oak Park
Nursing Care Center, 351 NLRB 27, 28 (2007); Promedica Health
Systems, 343 NLRB 1351, 1351 (2004), enfd. in pertinent part 206
Fed.Appx. 405 (6th Cir. 2006), cert. denied 549 U.S. 1338 (2007). The
tell-tale sign regarding whether a warning, coaching or reprimand lays
a foundation for future discipline is that the employer may consider it at
a later date when the employer is deciding whether to impose discipline
and/or what kind of discipline it should impose. Promedica Health
Systems, 343 NLRB at 1351–1352. Although it is clear that a warning,
coaching or reprimand is a form of discipline if it automatically leads to
discipline in the event of a future infraction, an automatic link to future
discipline is not required. Instead, warnings, coachings and reprimands
may qualify as forms of discipline if they lay a foundation for future
discipline, even if the employer retains the discretion regarding whether
to actually take disciplinary action. Promedica Health Systems, 343
NLRB at 1351 (explaining that warnings and reprimands qualify as
was anything unusual about Respondent considering the July 8,
2016 disciplinary action notice as part of its review of Shahat’s
overall performance. Indeed, there is no evidence that Re-
spondent treated Shahat differently than other similarly situated
employees, nor is there evidence that Respondent deviated from
any established practice regarding when unofficial disciplinary
notices may be considered.
In short, I find that: (a) Respondent would have prepared the
July 8, 2016 disciplinary action notice even in the absence of
Shahat’s protected concerted activities (such that, at a mini-
mum, Respondent established an affirmative defense to the
allegation that it prepared the discipline for unlawful reasons);
and (b) the General Counsel did not show that Respondent
improperly considered the July 8, 2016 disciplinary action no-
tice as a factor in Shahat’s discharge. I therefore recommend
that this allegation in the complaint be dismissed.
B. Did Respondent Violate the Act when it Discharged Yazid
on July 22, 2016?
1. Complaint allegation
The General Counsel alleges that Respondent violated Sec-
tion 8(a)(1) of the Act by discharging Yazid on or about July
22, 2016, because he engaged in protected concerted activities,
and to discourage employees from engaging in those or other
protected concerted activities. (GC Exh. 1(g) (pars. 6(b), (d)).).
2. Analysis
In May 2016, Yazid received a Needs Improvement rating
on his annual performance evaluation because, among other
issues, he was having trouble with multitasking and was mak-
ing mistakes in his work for the piping group. A few weeks
later, on or about June 6, Yazid erroneously asserted that Re-
spondent needed to issue an engineering change notice to
change the piping for two projects, at an additional cost of
$47,600. Although Mohajeri ultimately caught the mistake and
arranged to cancel the change notice before Respondent in-
curred any additional expenses, the incident further eroded
Respondent’s confidence in Yazid’s work. Yazid, meanwhile,
was unhappy that Mohajeri was demanding that he (Yazid)
write a statement about the change notice incident, and there-
fore emailed Hester in human resources to request a meeting.
Yazid, however, did not describe his concerns to Hester in his
email, beyond stating that he wanted to drop by to discuss a
“situation.” The meeting with Hester never occurred, in part
because Hester overlooked Yazid’s email, and in part because
Yazid never followed up with Hester after his initial meeting
request. (FOF, Section II(D)(2), (E)(1)–(2).)
On July 14, 2016, Respondent scrapped the idea of placing
Yazid on a performance improvement plan, and instead decided
to discharge Yazid. Respondent then notified Yazid (on July
22) that he was being discharged. After learning of his dis-
charge, Yazid objected that Hester did not respond to his June 8
request for a meeting. Later in the day, Yazid sent Hester and
Shannon an email that expressed concerns about Mohajeri’s
management style and its effect on employees in the piping

forms of discipline if they are “taken into consideration in determining
whether further discipline is warranted”).
MITSUBISHI HITACHI POWER SYSTEMS AMERICAS, INC. 17
group, and attached a grievance statement describing similar
concerns. Respondent did not investigate Yazid’s grievance
because it believed Yazid was simply a disgruntled employee
trying to get back at Mohajeri. (FOF, Section II(E)(3), (H)–
(I).)
Based on the evidentiary record, I find that the General
Counsel failed to meet its initial burden of showing that Re-
spondent discharged Yazid because of his protected concerted
activities. Specifically, the General Counsel did not establish
that Respondent knew about any of Yazid’s protected concerted
activities before Yazid’s discharge, and thus did not establish
that Respondent’s decision to discharge Yazid was motivated
by Yazid’s protected concerted activities. I did not find that
Yazid engaged in any protected concerted activities on June 8
(the date on which the General Counsel relies). Yazid certainly
emailed Hester on June 8 to request a meeting, but only stated
that he had a situation that he wanted to discuss, and said noth-
ing about his specific concerns. As for Yazid’s discussions
with Mohajeri on June 8 in the aftermath of the change notice
incident, the evidentiary record is simply not clear enough for
me to determine what Yazid said to Mohajeri, or whether
Yazid’s remarks might have been aimed at improving the work-
ing conditions of employees in the piping group (as opposed to
being aimed at addressing Yazid’s disagreement with Mohajeri
about how the change notice was handled). To be sure, Yazid
presented more specific concerns about Mohajeri to Respond-
ent on July 22, but that only occurred after Respondent notified
Yazid that he was being discharged.
I recognize that on July 14, shortly after Shahat’s complaint,
Respondent did change its plan to place Yazid on a perfor-
mance improvement plan. Indeed, I find that in the July 14
meeting, Respondent essentially decided that it should clean
house in the piping group by discharging both Shahat and
Yazid (as Deen put it regarding Shahat, it was time for Re-
spondent to cut its losses and move on (see FOF, Section
II(H)(2)). My finding on that point, however, does not change
the outcome for Yazid, because Yazid’s performance issues
were well documented, and (as noted above) the General Coun-
sel did not prove that Respondent discharged Yazid because of
his protected concerted activities. Accordingly, I recommend
that this allegation of the complaint be dismissed.
C. Did Respondent Unlawfully Threaten Shahat about Discuss-
ing his Complaint about Mohajeri with Other Employees?
1. Complaint allegation
The General Counsel alleges that Respondent violated Sec-
tion 8(a)(1) of the Act by, in August 2016, directing employees
not to discuss complaints about their supervisor with other em-
ployees, and threatening employees with unspecified reprisals
if they did so. (GC Exh. 1(g) (par. 5).)
2. Analysis
As indicated above, the General Counsel asserts that in Au-
gust 2016, Mohajeri warned Shahat that he would be in huge
trouble if he discussed his July 11 complaint with other em-
ployees. I was not able to credit Shahat’s testimony that Mo-
hajeri made that statement, and no other supporting evidence
was offered. (FOF, Section II(K)(2).) Given the absence of
reliable evidence about the alleged threat, I recommend that
this allegation in the complaint be dismissed.
D. Did Respondent Violate the Act when it Discharged Shahat
on October 13, 2016?
1. Complaint allegation
The General Counsel alleges that Respondent violated Sec-
tion 8(a)(1) of the Act by discharging Shahat on or about Octo-
ber 13, 2016, because he engaged in protected concerted activi-
ties, and to discourage employees from engaging in those or
other protected concerted activities. (GC Exh. 1(g) (pars. 6(c)–
(d)).).
2. Analysis
In May 2016, Shahat received a Meets Expectations rating
on his annual performance evaluation. Respondent assigned
Shahat that rating despite the fact that Mohajeri periodically
had to coach Shahat about time management, improperly shift-
ing work to other employees, and not catching mistakes in work
that he reviewed for certain piping group projects. Towards the
end of his meeting with Mohajeri about the evaluation, Shahat
took the opportunity to tell Mohajeri that, among other things,
Mohajeri’s management style was creating stress for the piping
group employees, and that Mohajeri was treating Shahat and
certain other employees differently than the rest of the piping
group. (FOF, Section II(D)(1).)
In the morning on July 11, Shahat met with Deen to discuss a
dispute that arose on July 7 with Mohajeri about swapping
cubicles. In that meeting, Shahat presented Deen with two
complaint letters about Mohajeri (one letter for Deen, and one
letter for the human resources department). In each of the two
letters, Shahat asserted that Mohajeri had subjected him to bul-
lying and abusive behavior, and also had subjected other piping
group employees to similar misconduct. Deen walked with
Shahat to the human resources department, where Shahat met
with Hester for a 30–minute intake interview about the allega-
tions in Shahat’s complaint. Hester assured Shahat that the
human resources department would investigate his complaint.
(FOF, Section II(G).)
As previously noted, on July 14, a group of managers (in-
cluding Deen and Mohajeri) met to discuss Shahat, Yazid and
the “piping group’s path forward.” The managers essentially
decided to clean house in the piping group by discharging both
Shahat and Yazid, but decided that they needed to hold off on
discharging Shahat because Shahat had just filed his complaint,
and it would seem retaliatory to discharge him at that time.
(FOF, Section II(H)(2).)
From July to September 2016, Hester investigated Shahat’s
complaint (with Shannon’s guidance and supervision). Hester
obtained written responses from Mohajeri and Deen about the
allegations in Shahat’s complaint. Hester also met with Mo-
hajeri and Deen together to discuss Shahat’s complaint (which
the managers viewed as petty in nature), and reviewed Re-
spondent’s harassment policies and a summary of workplace
harassment guidelines that she obtained from a Department of
Labor website. Hester did not, however, take any of the fol-
lowing steps in her investigation:
(a) re-interview Shahat (e.g., to gather more information after
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
Hester had Mohajeri’s and Deen’s input and responses);
(b) consider or investigate Yazid’s July 22, 2016 email and
grievance about Mohajeri (which raised similar concerns
about Mohajeri, to the point that Shannon initially thought
Yazid’s email and grievance came from Shahat); or
(c) contact or interview any of the 8–10 employees in the pip-
ing group to see if they might corroborate or rebut the allega-
tions in Shahat’s complaint and/or Yazid’s email and griev-
ance.
Ultimately, Hester concluded that Mohajeri did not subject
Shahat to a hostile working environment, and that their conflict
boiled down to a clash of personalities. (FOF, Section II(J),
(L); see also FOF, Section II(I)(3).)
With the investigation of Shahat’s complaint behind it, Re-
spondent proceeded to discharge Shahat for poor performance.
Notably, to the extent that Shahat had performance issues in the
summer and fall of 2016, Respondent (through Mohajeri) relied
on informal coachings to address those issues (instead of im-
posing discipline or placing Shahat on a performance im-
provement plan). Respondent formally discharged Shahat on
October 13, 2016. (FOF, Section II(K)(1), (L)–(M).)
I find that the General Counsel met the initial burden of
showing that Respondent discharged Shahat because of Sha-
hat’s protected concerted activities. First, the General Counsel
demonstrated that Shahat engaged in concerted activity by
showing that Shahat spoke periodically with some of his
coworkers about their view that Mohajeri was mistreating them
and creating an abusive and stressful environment in the piping
group.
Second, Respondent was aware of Shahat’s concerted activi-
ty. The evidentiary record shows that: (a) on May 19, Shahat
told Mohajeri (at the end of Shahat’s performance evaluation)
that Mohajeri’s management style was creating a stressful envi-
ronment for the piping group; and (b) on July 11, Shahat sub-
mitted complaint letters to Deen and human resources to assert
that Mohajeri was subjecting Shahat and other piping group
employees to bullying and abusive behavior. In his July 11
complaint, Shahat explicitly advised Respondent that he knew
of other employees who were being mistreated by Mohajeri,
but were too afraid to come forward because they feared losing
their jobs.
Although Respondent maintains that Shahat’s complaints
were only personal in nature (see R. Posttrial Br. at 27–28, 33–
35), I do not find that argument to be persuasive.32 To the con-
trary, Shahat presented Respondent with a truly group com-
plaint when he raised concerns about how Mohajeri treated
certain piping group employees – indeed, Shahat’s complaints

32 Respondent also makes much of the fact that Shahat was not will-
ing to not provide the names of employees who shared his concerns or
experienced similar mistreatment when Respondent requested that
information while investigating Shahat’s July 11 complaint. (See R.
Posttrial Br. at 24, 26, 33.) I do not find that Shahat was required to
disclose the names of like-minded employees or employee witnesses
for Shahat’s activities to qualify as concerted. It was enough that Sha-
hat came to Respondent to present truly group complaints about Mo-
hajeri’s management practices.
to Mohajeri, Deen and human resources were a logical out-
growth of the concerns that Shahat previously discussed with
some of his coworkers. See Lou’s Transport, 361 NLRB at
1447 (finding protected concerted activity where two drivers
spoke to each other about working conditions, and drivers
complained individually to the employer about the same is-
sues); Amelio’s, 301 NLRB 182, 182 fn. 4 (1991) (finding that
“an individual is acting on the authority of other employees
where the evidence supports a finding that the concerns ex-
pressed by the individual employee are a logical outgrowth of
the concerns expressed by the group”).33
Third, Shahat’s concerted activities were for the purpose of
mutual aid and protection, and thus were protected by the Act.
As previously noted, Shahat clearly complained that Mohajeri
was engaging in misconduct that affected the working condi-
tions of multiple employees in the piping group. It does not
matter that Shahat may also have had a personal stake in ad-
dressing his relationship with Mohajeri – the fact remains that
Shahat’s complaint promised to benefit all of the employees in
the piping group. It is well established that proof that an em-
ployee action inures to the benefit of all is proof that the action
comes within the mutual aid and protection clause of Section 7
of the Act. Fresh & Easy Neighborhood Market, 361 NLRB at
155 (collecting cases).
And fourth, Respondent’s decision to discharge Shahat was
motivated by Shahat’s protected, concerted activity. The tim-
ing of Respondent’s decision to discharge Shahat is suspicious.
As of July 8, Respondent planned to simply issue a written
warning to Shahat for insubordination associated with the cubi-
cle swap dispute. There was no suggestion that Shahat was in
danger of being fired for performance reasons – to the contrary,
Respondent was fine with merely coaching Shahat when issues
arose with his work. However, after Shahat submitted his
complaint on July 11, Respondent scheduled a managers’ meet-
ing on July 14 to discuss the path forward for the piping group,
and decided that Shahat should be discharged (albeit not while
Shahat’s complaint was being investigated). That chain of
events indicates that it was Shahat’s complaint (which Re-
spondent viewed as petty), and not some other reason, that
prompted Respondent to decide that Shahat should be dis-
charged. See Crisdel Group, Inc., 360 NLRB 751, 759 (2014)
(finding discriminatory animus in part because the timing of the
employee’s layoff was suspicious).
The conclusion that Respondent was motivated to discharge
Shahat because Shahat engaged in protected concerted activity
is also supported by the fact that Respondent failed to adequate-
ly investigate Shahat’s complaint. Respondent performed an
intake interview with Shahat on July 11, and essentially made
no further effort to explore sources of information that might

33 I note that Yazid’s July 22 email and grievance about Mohajeri
also was a logical outgrowth of the concerns that he, Shahat and some
other piping group employees discussed. Respondent therefore re-
ceived two similar complaints from individuals who previously spoke
to each other about their concerns about Mohajeri. As noted above,
when presented with similar circumstances in Lou’s Transport and in
Amelio’s, supra, the Board found that the employees engaged in pro-
tected concerted activities.
MITSUBISHI HITACHI POWER SYSTEMS AMERICAS, INC. 19
have corroborated Shahat’s allegations. Respondent did not
attempt to speak to any other employees in the piping group (a
group of only 8–10 people), disregarded Yazid’s July 22 email
and grievance, and accepted Mohajeri’s denial of any miscon-
duct at face value. Respondent’s limited investigation inevita-
bly led it to conclude that Shahat’s complaint could not be sub-
stantiated, that Shahat was just being petty in his interactions
with Mohajeri, and that Respondent should proceed with dis-
charging Shahat as previously decided.34
I am not persuaded by Respondent’s proffered affirmative
defense that it, irrespective of Shahat’s complaint, Respondent
would have discharged Shahat in the fall of 2016 because Sha-
hat performed poorly at work. While it is true that Shahat had
some work performance issues after he submitted his com-
plaint, Respondent handled those issues in the same fashion as
it did before Shahat complained – that is, Mohajeri coached
Shahat about the issues, but took no additional action. The fact
that Respondent handled Shahat’s work performance in this
manner suggests that Respondent was willing to tolerate Sha-
hat’s occasional work-related mistakes. The prospect of dis-
charging Shahat for his work performance only arose after Sha-
hat submitted his July 11 complaint about Mohajeri, and I note
that significant the shift in how Respondent handled Shahat’s
work-related mistakes (from coaching to discharge) after Sha-
hat complained about Mohajeri further supports my finding that
Respondent discharged Shahat because he engaged in protected
concerted activities. Medic One, Inc., 331 NLRB at 475 (not-
ing that tolerance of behavior for which the employee was al-
legedly fired supports an inference of discriminatory motiva-
tion).
In sum, the General Counsel met its burden of showing that
Respondent discharged Shahat for discriminatory reasons, and
Respondent failed to prove its affirmative defense. I therefore
find that Respondent violated Section 8(a)(1) of the Act by
discharging Shahat on October 13, 2016 because Shahat en-
gaged in protected concerted activities.
CONCLUSIONS OF LAW
1. By discharging Mohamed Shahat on October 13, 2016,
because he engaged in protected concerted activities on or
about May 19 and/or July 11, 2016, Respondent violated Sec-
tion 8(a)(1) of the Act.
2. By committing the unfair labor practices stated in Con-
clusion of Law 1 above, Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 8(a)(1) and Section 2(6) and (7) of the Act.

34 As the Board has explained, the General Counsel may demon-
strate a motive to discriminate by showing that an employer failed to
investigate whether an alleged discriminatee engaged in misconduct
that led to the disputed disciplinary action (or discharge). See, e.g.,
Manor Care Health Services – Easton, 356 NLRB 202, 204 (2010),
enfd., 661 F.3d 1139 (D.C. Cir. 2011); Medic One, Inc., 331 NLRB at
475. That line of cases applies here, because by failing to adequately
investigate whether Mohajeri engaged in misconduct towards Shahat,
Respondent also failed to adequately investigate whether Shahat was
being petty in his July 11 complaint (as Respondent believed, see FOF,
Section II(J)), as opposed to bringing forward truthful, group concerns
about Mohajeri.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
Respondent, having discriminatorily discharged Mohamed
Shahat, must offer him reinstatement to his former position or,
if that position no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or
privileges he would have enjoyed absent the discrimination
against him. Respondent must also make Shahat whole for any
loss of earnings and other benefits.
35

The make whole remedy shall be computed in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
at the rate prescribed in New Horizons, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky River
Medical Center, 356 NLRB 6 (2010). In accordance with King
Soopers, Inc., 364 NLRB No. 93 (2016), enfd. in pertinent part
859 F.3d 23 (D.C. Cir. 2017), Respondent shall compensate
Shahat for search-for-work and interim employment expenses
regardless of whether those expenses exceed his interim earn-
ings. Search-for-work and interim employment expenses shall
be calculated separately from taxable net backpay, with interest
at the rate prescribed in New Horizons, supra, compounded
daily as prescribed in Kentucky River Medical Center, supra.
Respondent shall also be required to expunge from its files any
references to its unlawful decision to discharge Shahat, and
within 3 days of thereafter shall notify Shahat that this has been
done and that the unlawful decision will not be used against
him in any way.
In accordance with Don Chavas, LLC d/b/a Tortillas Don
Chavas, 361 NLRB 101 (2014), Respondent shall compensate
Shahat for the adverse tax consequences, if any, of receiving a
lump-sum backpay award, and, in accordance with AdvoServ of
New Jersey, Inc., 363 NLRB No. 143 (2016), Respondent shall,
within 21 days of the date the amount of backpay is fixed either
by agreement or Board order, file with the Regional Director
for Region 12 a report allocating backpay to the appropriate
calendar year(s). The Regional Director will then assume re-
sponsibility for transmitting the report to the Social Security
Administration at the appropriate time and in the appropriate
manner.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended36

35 As part of its request for make whole relief, the General Counsel
asked that I order Respondent to pay consequential damages to reim-
burse Shahat for any economic harm that he incurred as a result of
Respondent’s unfair labor practices. As the Board has recognized, a
change in Board law would be required for me to award consequential
damages. See, e.g., Guy Brewer 43 Inc., 363 NLRB No. 173, slip op. at
2 fn. 2 (2016). Since I must follow existing Board law (which does not
authorize me to award consequential damages), I deny the General
Counsel’s request for consequential damages.
36 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
ORDER
Respondent, Mitsubishi Hitachi Power Systems Americas,
Inc., Lake Mary, Florida, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discharging employees because they engage in protected
concerted activities.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
reinstatement to Mohamed Shahat to his former position or, if
that position no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other rights or
privileges he would have enjoyed absent the discrimination
against him.
(b) Make Mohamed Shahat whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against him, in the manner set forth in the remedy section of
this decision.
(c) Within 14 days from the date of this Order, remove from
its files any references to the unlawful decision to discharge
Mohamed Shahat and, within 3 days thereafter, notify him in
writing that this has been done and that the unlawful decision
will not be used against him in any way.
(d) Compensate Mohamed Shahat for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award, and
file with the Regional Director for Region 12, within 21 days of
the date the amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award to the ap-
propriate calendar year(s).
(e) Within 14 days after service by the Region, post at its fa-
cility in Lake Mary, Florida, copies of the attached notice
marked “Appendix” in both English and Japanese.37 Copies of
the notice, on forms provided by the Regional Director for Re-
gion 12, after being signed by Respondent’s authorized repre-
sentative, shall be posted by Respondent and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. In addition
to physical posting of paper notices, the notices shall be distrib-
uted electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if Respondent
customarily communicates with its employees by such means.
Reasonable steps shall be taken by Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, Respondent has gone out of business or closed the
facilities involved in these proceedings, Respondent shall du-
plicate and mail, at its own expense, a copy of the notice to all
current employees and former employees employed by Re-

37 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.”
spondent at any time since October 13, 2016.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that
Respondent has taken to comply.
Dated, Washington, D.C. February 1, 2018
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
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT discharge employees because they engage
in protected concerted activities.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL offer reinstatement to Mohamed Shahat to his for-
mer position or, if that position no longer exists, to a substan-
tially equivalent position, without prejudice to his seniority or
any other rights or privileges he would have enjoyed absent the
discrimination against him.
WE WILL make Mohamed Shahat whole for any loss of earn-
ings and other benefits suffered as a result of the unlawful Oc-
tober 13, 2016 discharge against him, less any net interim earn-
ings, plus interest, plus reasonable search-for-work and interim
employment expenses.
WE WILL, within 14 days from the date of the judge’s Order,
remove from our files any references to the unlawful October
13, 2016 discharge against Mohamed Shahat and WE WILL,
within 3 days thereafter, notify him in writing that this has been
done and that the unlawful discharge will not be used against
him in any way.
WE WILL compensate Mohamed Shahat for the adverse tax
consequences, if any, of receiving a lump-sum backpay award,
and WE WILL file with the Regional Director for Region 12,
within 21 days of the date the amount of backpay is fixed, ei-
ther by agreement or Board order, a report allocating the back-
pay award to the appropriate calendar year(s).
MITSUBISHI HITACHI POWER SYSTEMS
AMERICAS, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/12-CA-188952 or by using the QR code
MITSUBISHI HITACHI POWER SYSTEMS AMERICAS, INC. 21
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273–1940.