Wal-Mart Stores, Inc.

National Labor Relations Board - Administrative Judge Opinions

Aug 31, 2016

28-CA-167277 (N.L.R.B. Aug. 31, 2016)

JD(SF)-34-16
Gilbert, AZ
1
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH
WAL-MART STORES, INC.
and Case 28-CA-167277
RYAN COOK, an individual.
Lisa J. Dunn, Esq., for the General Counsel.
Steven D. Wheeless, Esq. and Laura E. Antonuccio, Esq.
(Steptoe & Johnson, LLP), for the Respondent.
DECISION
STATEMENT OF THE CASE
Gerald M. Etchingham, Administrative Law Judge. The record in this case opened on
August 9, 2016, via telephone with the parties’ legal counsel in Phoenix, Arizona, based on a
January 7, 2016 charge which was later withdrawn on June 2, 2016, and upon the complaint, and
notice of hearing issued on June 7, 2016, by the Regional Director for Region 28, and further
amended on July 5, 2016 (complaint).
The complaint alleges that Respondent, Wal-Mart Stores, Inc. (Respondent or Employer),
a nonunionized employer, violated Charging Party Ryan Cook’s (Cook’s or Charging Party’s)
Weingarten1 rights on two separate occasions in 2015 in violation of Section 8(a)(1) of the
National Labor Relations Act, as amended (the Act), and that Respondent unlawfully maintains a
national rule that prohibits its employees their Weingarten rights also in violation of Section
8(a)(1).
The Respondent denies these allegations in its answer to the complaint and raises as an
affirmative defenses, among other things, that there is no related charge remaining in this case
once Cook’s Section 8(a)(3) charge allegation was withdrawn on June 2, 2016, that Section 10(b)
of the Act bars the General Counsel’s remaining allegations against Respondent, and that current
Board law in IBM Corporation, Inc., 341 NLRB 1288 (2004), is controlling and the complaint
lacks merit because a nonunionized employer, like Respondent here, does not act unlawfully

1 NLRB v. J. Weingarten, 420 U.S. 251 (1975)(In a unionized setting, an employee is permitted to have a
coworker present at an investigatory interview that the employee reasonably believes might result in discipline.).
These are hereafter referred to as “Weingarten rights”.
JD(SF)-34-16
2
under the Act and current Board law, when denying its employees the same Weingarten rights
that are available to employees in a unionized employer setting under Weingarten.
FACTS AND PROCEDURAL RECORD
5
Upon the entire official record herein amended at hearing2, including the legal briefs from
counsel for the General Counsel and Respondent, I make the following rulings. (Tr. 23, 25; GC
Exhs. 1(a)-(g), 1(i)-(z), as amended, and GC Exh. 2.)
The lone charge filed in this case is dated January 7, 2016, (Jan. 7 charge) and was filed 10
by the Charging Party against the Respondent at its Gilbert, Arizona address. (GC Exh. 1(a).)
The form that Cook used to file his charge is the typical FORM NLRB-501 revised
February, 2008. (GC Exh. 1(a).) Subparagraph 1(k) of the charge which lists what sections of
the Act are alleged to be violated by the Employer is blank leaving only a boilerplate Section15
8(a)(1) reference. Although other alleged Act violation sections could have been written in
there, they were not. Id.

Paragraph 2 of the Jan. 7 charge reads:
20
During the last six months, the above named Employer, which is Wal-Mart
Stores, Inc., by its officers, agents, and supervisors have discriminated against its
employees by, among other things, discharging its employee Ryan Cook because
he engaged in protected concerted activities.
25
(GC Exh. 1(a).)
The next paragraph reads:
By the above and other acts, the Employer has interfered with, restrained and 30
coerced employees in the exercise of their Section 7 rights under the National
Labor Relations Act.
Id.
During 2016, the Regional Director and the General Counsel at Region 28 investigated 35
the Jan. 7 charge and it was never amended.
After reviewing evidence produced by Respondent and concluding the charge
investigation, on June 2, 2016, the Regional Director sent a letter to Respondent's counsel and
Charging Party Cook that reads:40
This is to advise that I have approved the withdrawal of the Section 8(a)(1)
portion of the charge which alleges that the Charging Party was discharged
because he engaged in protected concerted activity. All other allegations
45

2 The transcript in this case is generally accurate, but I correct the transcript (Tr.) as follows: Tr. 21, line (l) 22:
“relegated” should be “related.”
JD(SF)-34-16
3
investigated and related to the charge remain pending and are subject to further
proceedings.3
(Ex. “B” to GC Exh. 1(i) at 14-15.)
5
On June 7, 2016, the Regional Director issued the complaint and notice of hearing in this
case. Nowhere in the complaint and the notice of hearing is there any reference to any alleged
discriminatory discharge on the Respondent's part against the Charging Party. (GC Exh. 1 (c).)
The complaint itself contains typical allegations of when the charge was served, 10
jurisdiction over the Respondent, and agency/supervisor kind of capacity. Respondent is a
nonunionized employer and consistent with this, the complaint is silent as to whether Respondent
is represented by any specific union. (GC Exh. 1(c).)
Paragraphs 4(a) through 4(f) of the complaint allege that Respondent acted unlawfully 15
and violated Act Section 8(a)(1) by disallowing Cook his Weingarten rights on 2 occasions in
late September and on December 21, 2015. (GC Exh. 1(c).)
Specifically, complaint paragraph 4(a) alleges that about late September 2015, a more
precise date being unknown to the General Counsel, Respondent, by Randall Lara, at 20
Respondent's facility, denied the request of employee Cook to have a witness present during an
interview. Next subparagraph 4(b) says Respondent's employee Cook had reasonable cause to
believe that the interview described above in subparagraph 4(a) would result in disciplinary
action being taken against him. Subparagraph 4(c) continues and states: “About late September
2015, a more precise date being unknown to the General Counsel, Respondent, by Lara, at 25
Respondent's facility, conducted the interview described above in paragraph 4(a) with its
employee Cook, even though Respondent denied the employee's request to have a witness
present as described above in paragraph 4(a).” Id.
Subparagraph 4(d) provides that in and about December 21, 2015, Respondent by Lara 30
and Tara Chapman, at Respondent's facility, denied the request of its employee Cook to have a
witness present during an interview. Subparagraph 4(e) reads: “Respondent's employee Cook
had reasonable cause to believe that the interview described above in paragraph 4(d) would result
in disciplinary action being taken against him.” Id. Finally, subparagraph 4(f) provides that in or
about December 21, 2015, Respondent, by Lara and Chapman, at Respondent's facility,35
conducted the interview described above in paragraph 4(d) with its employee Cook, even though
Respondent denied the employee's request to have a witness present as described in paragraph
4(d) period. Id.
Subparagraph 5 of the complaint alleges that by the conduct described above in 40
paragraph 4, Respondent has been interfering with, restraining, and coercing employees in the
exercise of their rights guaranteed in Section 7 of the Act in violation of Section 8(a)(1) of the
Act. Id.

3 The General Counsel stipulated that the June 2, 2016 letter was received by the Respondent and the General
Counsel also confirmed that this June 2, 2016 letter was sent to the parties and that a similar but differently
formatted identical letter dated June 16, 2016 (GC Exh. 1(h) was withdrawn at hearing) was also mailed to the
parties by the Region 28 Regional Director. Transcript (TR) at 8, 12-16.
JD(SF)-34-16
4
Subparagraph 6 alleges that the unfair labor practices of Respondent described above
affect commerce within the meaning of Section 2(6) and (7) of the Act. Id.
On June 14, 2016, the Regional Director granted Respondent’s unopposed motion to
reschedule hearing and the hearing was postponed from July 26, 2016 to August 9, 2016, in 5
Phoenix, Arizona.
On June 21, 2016, the Respondent filed its answer to the complaint generally denying the
allegations contained in paragraphs 4-6 of the complaint and providing affirmative defenses,
among others, as follows:10
1. The allegations in the Complaint fall wholly outside the scope of the pertinent
Charge. The Charge alleged only that Walmart violated the Act by discharging
Cook. [Exhibit A.] Cook never amended the Charge. [See Complaint ¶ 1.] After
Walmart established that it discharged Cook for intentionally falsifying time clock 15
records to get paid for work he did not do, Cook withdrew his discharge-related
Charge, and the Region approved that withdrawal on June 2, 2016. [Exhibit B.]
The Region did not issue a Complaint on that allegation; the only one in the
Charge. Rather, the Region - solely on its own initiative - substituted a
Weingarten "denial of witness" allegation; one never alleged in any Charge. As a 20
matter of law, a Weingarten "denial of a witness" allegation does not "closely
relate" to a Wright Line discharge allegation. Ivy Steel & Wire Co., 346 NLRB
404, 421-22 (2006) (Board affirmed ALJ's refusal to add a Weingarten allegation
to Complaint because it did not closely relate to the timely-filed unlawful
suspension charge analyzed under Wright Line). Consequently, the Complaint 25
here fails because the Board cannot originate complaints on its own initiative." U.
W. Galloway Co. v. NLRB, 856 F.2d 275, 280 (D.C. Cir. 1988) (Board exceeded
its authority by issuing a complaint alleging that an employer threatened to
terminate picketing employees where underlying charge alleged only that the
employer discharged an employee for protected activities); Nickles Bakery, 296 30
NLRB 927, 928 (1989) (adopting Galloway reasoning and reaffirming the three-
part closely-related Redd-I, Inc. test to determine whether complaint allegations
not found in charge closely relate to timely-filed underlying charge).
2. NLRA § 10(b) bars the allegations in the Complaint.
3. The allegations in the Complaint fail because no union represents Walmart 35
associates, and the Act does not confer any Weingarten right on non-union
employees as set forth in IBM Corp., 341 NLRB 1288, 1289 (2004).
(GC Exh. 1(i).)
40
On July 5, 2016, the Regional Director issued an amended complaint which added new
paragraph 4(g) which reads as follows:
At all material times, at all of its offices and places of business nationwide,
Respondent has maintained a nationwide policy denying its employees the right to 45
be represented by a coworker in an investigatory interview [in violation of Section
8(a)(1) of the Act] (the post-discharge Weingarten rights allegations.
(GC Exh. 1(j).)
JD(SF)-34-16
5
The amended complaint also contains amended remedial provisions. Id. Collectively, the pre-
discharge and post-discharge Weingarten rights allegations are referred to hereafter simply as the
new 3 Weingarten rights allegations.
On July 18, 2016, the Respondent filed an amended answer. (GC Exh. 1(l).)5
On August 3, 2016, the Respondent filed a motion to dismiss and postpone hearing with
the Board (the Motion).(GC Exh. 1(p).)
On August 4, 2016, the General Counsel filed its opposition to the Motion. (GC Exh. 10
1(q).)
On August 6, 2016, Respondent filed its reply to the General Counsel’s opposition with
the Board. (GC Exh. 1(u) and 1(w).)
15
On August 8, 2016, the Board issued its order referring the Motion to me after hearing
opens on August 9, 2016 and the order is without prejudice to any party seeking special
permission to appeal my disposition of the Motion pursuant to Section 102.26 of the Board’s
Rules and Regulations and finally the Order denied Respondent’s request for a continuance of
the August 9 hearing. (GC Exh. 1(x).)20
On August 8, 2016, the Respondent filed its notice to counsel for General Counsel of
additional authority for Section 102.35(a)(8) motion to dismiss (to the administrative law judge)
for lack of jurisdiction. (GC Exh. 1(y).)
25
On August 9, 2016, I conducted a telephonic hearing opening the record in this matter
and admitting in evidence the official record, General Counsel’s Exhibits 1(a)-(j) and 1(i)-(z) as
amended, and General Counsel’s Exhibit 2. (TR at 8, 12-16.)
On August 10, 2016, I issued a scheduling order allowing the General Counsel to file a
supplemental opposition brief to the Motion no later than August 19, 2016 and also allowing the 30
Respondent to file one last reply brief no later than August 26, 2016 regarding its Motion.
On August 19, 2016, the General Counsel filed GC’s supplemental brief (GC’s
Supplemental Brief).
35
On August 26, 2016, the Respondent filed the final reply brief (Reply Brief).
I. RESPONDENT’S MOTION TO DISMISS
A. RESPONDENT’S ARGUMENTS40
Respondent argues that the withdrawn charge in this case that preceded the complaint
issuance is inadequate as a matter of law to support the new 3 Weingarten allegations and that,
instead, the withdrawn charge should have been amended by the Charging Party to add the new
allegations before it was withdrawn on June 2, 2016.45
Respondent also argues that the sole charge in this case is unrelated to the new 3
Weingarten allegations and, instead, involves allegations that Respondent violated the Section
JD(SF)-34-16
6
8(a)(3) of the Act when it discriminatorily discharged employee Cook on December 21, 2015,
for engaging in protected concerted activities. Respondent further argues that the only other
language in the now withdrawn charge beyond the Section 8(a)(3) discriminatory discharge
claim is meaningless boilerplate verbiage that I should ignore when ruling on its Motion.
Finally, Respondent argues that the Act does not currently give Respondent’s 5
nonunionized employees Weingarten rights and the complaint in this case cannot properly allege
that Respondent acted unlawfully even if it denied Cook Weingarten rights or maintained a
national rule that prohibits Weingarten rights. See IBM Corporation, 341 NLRB 1288, 1289
(2004).
10
B. THE GENERAL COUNSEL’S ARGUMENTS
The General Counsel argues that each of the new 3 Weingarten right allegations grew out
of the withdrawn discriminatory discharge allegation as a result of the General Counsel’s
investigation. Consequently, the new 3 Weingarten rights allegations are related to the 15
discriminatory discharge allegation because each allegation grew out of the same facts and
circumstances as the withdrawn discriminatory discharge claim.
The General Counsel also acknowledges that once the discriminatory discharge allegation
was withdrawn from this case before the complaint issued, all that remains is the General
Counsel’s request that the Board once again consider the question whether the principles set 20
forth by the Supreme Court in NLRB v. Weingarten, 420 U.S. 251 (1975) should be extended to
employees in nonunionized workplaces, like Respondent in this case, to afford them the right to
have a coworker present at an investigatory interview which the employee reasonably believes
might result in disciplinary action (aka Weingarten rights). The General Counsel understands
that the current Board law on this legal issue is controlled by the case styled IBM Corporation, 25
341 NLRB 1288 (2004), which held that charging parties employees in a nonunionized
workplace were not entitled to Weingarten rights.4 Thus, the General Counsel seeks to have the
Board overturn the IBM Corporation case and have the new 3 Weingarten rights allegations
against Respondent be deemed adequate to support its argument that the new 3 Weingarten rights
allegations are related to the withdrawn discriminatory discharge allegation. 30
ANALYSIS
I. General Background
Section 10(b) of the Act provides that “no complaint shall issue based upon any unfair 35
labor practice occurring more than 6 months prior to the filing of the charge with the Board.” 29
U.S.C. § 160. “Section 10(b) functions in part as a statute of limitations by prohibiting the
issuance of a complaint based on conduct occurring more than 6 months prior to the filing of a
charge.” Carney Hospital, 350 NLRB 627, 628 (2007). In this case, Respondent argues that no
charge was filed regarding any of the Section 8(a)(1) allegations that the General Counsel added 40
at subparagraphs 4(a)-(g) and 5 of the complaint and therefore the complaint must be dismissed
for lack of jurisdiction.

4 The Board in IBM Corporation overturned the precedent of Epilepsy Foundation of Northeast Ohio, 331
NLRB 676 (2000), enfd. in relevant part 268 F.3d 1095 (D.C. Cir. 2001), cert. denied 536 U.S. 904 (2002), which in
turn overturned the principles of E.I. du Pont & Co., 289 NLRB 627 (1988).
JD(SF)-34-16
7
The Supreme Court in NLRB v. Fant Milling Co., 360 U.S. 301, 309 (1959), in discussing
the Board's authority to discharge its duty of protecting public rights, held that a complaint
alleging violations not specifically alleged in the charge is proper if the matters asserted in the
complaint "are related to those alleged in the charge and . . . grow out of them while the 5
proceeding is pending before the Board." Consistent with Fant Milling, the Board has long
required a sufficient factual relationship between the specific allegations in the charge and the
complaint allegations.
As the General Counsel points out in her supplemental brief, “[t]o attribute so tightly 10
restricted a function to a Board complaint as Respondent seeks in its Motion is, as the Supreme
Court held in National Licorice Co., 309 U.S. 350, 357 (1940), not consonant with the basic
scheme of the Act.” (GC’s Supplemental Brief at 5.) As further pointed out by the General
Counsel, “One of the issues in that case was substantially identical to the issue presented here—
‘whether the jurisdiction of the Board is limited to such unfair labor practices as are set up in the 15
charge presented to the Board so as to preclude its determination that (certain actions on the part
of the employer) involved unfair labor practices, since both occurred after the charge was lodged
with the Board.’ Id.”
The Supreme Court further states:20
It is unnecessary for us to consider now how far the statutory requirement of a
charge as a condition precedent to a complaint excludes from the subsequent
proceedings matters existing when the charge was filed, but not included in it.
Whatever restrictions the requirements of a charge may be thought to place upon 25
subsequent proceedings by the Board, we can find no warrant in the language or
purposes of the Act for saying that it precludes the Board from dealing adequately
with unfair labor practices which are related to those alleged in the charge and
which grow out of them while the proceeding is pending before the Board. The
violations alleged in the complaint and found by the Board were but a 30
prolongation of the attempt to form the company union and to secure the contracts
alleged in the charge. All are of the same class of violations as those set up in the
charge and were continuations of them in pursuance of the same objects. The
Board's jurisdiction having been invoked to deal with the first steps, it had
authority to deal with those which followed as a consequence of those already 35
taken. We think the court below correctly held that ‘the Board was within its
power in treating the whole sequence as one.’
Id. at 369, cited by Fant Milling Co., 360 U.S. at 306-07.
40
The General Counsel also points out that “[t]he Supreme Court explained the compelling
reasons for not precluding litigation of allegations growing out of allegations specifically raised
in an unfair labor practice charge in Fant Milling Co.:
A charge filed with the Labor Board is not to be measured by the standards 45
applicable to a pleading in a private lawsuit. Its purpose is merely to set in motion
the machinery of an inquiry. National Labor Relations Board v. Indiana &
Michigan Electric Co., 318 U.S. 9, 18, 63 S.Ct. 394, 400, 87 L.Ed. 579. The
responsibility of making that inquiry, and of framing the issues in the case is one
JD(SF)-34-16
8
that Congress has imposed upon the Board, not the charging party. To confine the
Board in its inquiry and in framing the complaint to the specific matters alleged in
the charge would reduce the statutory machinery to a vehicle for the vindication
of private rights. This would be alien to the basic purpose of the Act. The Board
was created not to adjudicate private controversies but to advance the public 5
interest in eliminating obstructions to interstate commerce, as this Court has
recognized from the beginning. National Labor Relations Board v. Jones &
Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893.
Once its jurisdiction is invoked the Board must be left free to make full inquiry 10
under its broad investigatory power in order properly to discharge the duty of
protecting public rights which Congress has imposed upon it. There can be no
justification for confining such an inquiry to the precise particularizations of a
charge.
15
360 U.S. at 307-08.
II. Without the Withdrawn Discriminatory Discharge Assertions, the Remaining
Unspecific Boilerplate Charge Language Is Insufficient to Relate to the New 3
Weingarten Allegations 20
Respondent argues that the only other language in the charge beyond the Section 8(a)(3)
discriminatory discharge claim is meaningless boilerplate verbiage filled in by the Charging
Party referencing a nonspecific Section 8(a)(1) violation that I should ignore when ruling on its
Motion. (Reply Brief at 17-27.) I agree with Respondent that there is a vague nonspecific 25
general boilerplate 8(a)(1) allegation that the Employer “has interfered with, restrained, and
coerced” employees in the exercise of their Section 7 rights. I find that there is no specific
evidence that the lone withdrawn Section 8(a)(3) charge and the boilerplate language were
intended to allege any of the new 3 Weingarten rights allegations the General Counsel seeks to
litigate in the complaint, as amended. I also agree with Respondent and further find that the 30
remaining charge language, after the Section 8(a)(3) discriminatory discharge allegation is
withdrawn or ignored, fails to satisfy the Board’s requirement set forth in Nickles Bakery of
Indiana, 296 NLRB 927 (1989), and Redd-I, 290 NLRB 1115 (1988), that “the complaint
allegations be factually related to the allegations in the underlying charge.”
35
Here, ignoring the discriminatory discharge assertions, the complaint’s new 3 Weingarten
allegations are based on nonspecific standard boilerplate language contained in the Charging
Party’s Jan. 7 charge and not the specific factual assertions made by Cook in his withdrawn
charge. As a result, I find that the remaining boilerplate allegations, after the withdrawal of the
Section 8(a)(3) discriminatory discharge allegations, are insufficient to support the new 3 Section 40
8(a)(1) Weingarten allegations. See Nickles Bakery, 296 NLRB at 928 (using “boilerplate ‘other
acts’ language to support uncharged 8(a)(1) complaint allegations contravenes Section 10(b)’s
mandate that the Board ‘not originate complaints on its own initiative’”); See also General
Counsel Memorandum OM-07-74 (Board law has explicitly found that this same boilerplate
language is meaningless.) 45
In sum, since I lack jurisdiction to find that the Respondent violated Section 8(a)(1) of the
Act in connection to the new 3 Weingarten allegations, the Motion is granted with respect to the
JD(SF)-34-16
9
nonspecific boilerplate allegations as I find that the remaining nonspecific boilerplate charge
allegations are insufficient and unrelated to the new 3 Weingarten allegations.
III. The Discriminatory Discharge Allegations of the Withdrawn Charge Are Also
Unrelated to the New 3 Weingarten Allegations 5
I begin by examining the language of the one and only filed charge in this case that was
withdrawn as of June 2, 2016, before the complaint in this case issued. As stated above,
Respondent argues that the sole charge involves allegations that Respondent violated Section
8(a)(3) of the Act when it discriminatorily discharged employee Cook for engaging in protected 10
concerted activities. (GC Exh. 1(a).) Here, the Jan. 7 charge contains language specifically
alleging that Respondent’s unlawful discriminatory discharge of Cook resulted from his
engaging in protected concerted activities. Id.
I further find that the new 3 Weingarten rights allegations are not specifically contained 15
in the Jan. 7 charge in this case and they are untimely filed as part of the complaint dated June 7
and July 5, 2016, respectively. Unless the General Counsel can show that these 3 untimely
Section 8(a)(1) allegations are related to the withdrawn, but timely, 8(a)(3) discriminatory
discharge allegation, the complaint must be dismissed for lack of jurisdiction over the new 3
Weingarten allegations. See Carney Hospital, 350 NLRB at 630, fn 11 (The Board agrees with 20
the D.C. Circuit’s holding in Drug Plastics & Glass Co. v. NLRB, 44 F.3d 1017, 1020 (D.C.
Circuit 1995), that an otherwise untimely allegation may be found timely under Redd-I even if
the timely allegation to which it is closely related is ultimately held to be without merit).
Extending the Board’s reliance on Drug Plastics further, I find that an otherwise untimely 25
allegation may be found timely under Redd-I even if the timely allegation to which it is closely
related is ultimately withdrawn after investigation as occurred in this case. Therefore, the
analysis here is whether the discriminatory discharge allegation is closely related to the new 3
Weingarten allegations.
30
Stated differently, under longstanding Board precedent, new 8(a)(1) complaint
allegations filed outside the Section 10(b) statute of limitations can be saved and attributed to a
previously filed charge if they are closely related to a timely filed charge allegation or subject
matter. Nickles Bakery of Indiana, 296 NLRB 927, 929 (1989).
35
In determining whether an otherwise untimely allegation is
sufficiently related to a timely allegation to allow it to be added
to the complaint, the Board applies the three-prong test set
forth in Redd-I, Inc., 290 NLRB 1115 (1988). Under that test,
the Board (1) considers whether the timely and the untimely40
allegations involve the same legal theory; (2) considers
whether the otherwise untimely allegations arise from the
same factual situation or sequence of events as the allegations
in the timely charge; and (3) “may look” at whether a respondent
would raise the same or similar defenses to both the timely and untimely 45
allegations. Carney Hospital, 350 NLRB [627, 628] (2007); Nickles Bakery of
Indiana, 296 NLRB 927, 928 (1989).
JD(SF)-34-16
10
Earthgrains Co., 351 NLRB 733, 734 (2007).5
Comparing the discriminatory discharge allegations of the withdrawn charge to the new 3
Weingarten allegations, I note that the General Counsel argues that its theory of the case in late
January 2016 included that:
 About December 22, 2015, discharging its employee Ryan Cook (Cook) because 5
he engaged in protected concerted activities, including by discussing with his
coworkers and raising complaints at team meetings and with individual
supervisors, issues relating to poor supervision, safety equipment, time
requirements for services, work area conduct/maintenance, and other terms and
conditions of employment; and10
 About late September 2015 and/or early December 2015, prohibiting its
employees, including Cook, from having a coworker present as a witness and/or
representative during interview/meeting (sic) relating to a possible on the job
accident involving employee Danya (LNU). t
(GC’s Supplemental Brief at 3-4; GC Exh. 1(p) at Tab 2, p. 1.)15
The General Counsel also concedes that [a]fter Respondent presented its evidence, on
June 2, Mr. Cook withdrew the portion of his charge alleging that he was unlawfully discharged.
(GC’s Supplemental Brief at 5; GC Exh. 1(p) at Tab 3.) The General Counsel then argues that
the remaining portions of the charge alleging that Respondent violated Section 8(a)(1) of the Act
“remained, and still remain, pending.” (GC’s Supplemental Brief at 5.) For the reasons stated 20
above, I find that once the discriminatory discharge allegation was withdrawn, the remaining
boilerplate language is insufficient to support the unrelated new 3 Weingarten allegations.
In this case the required factual relationship between the new 3 Weingarten allegations
and the withdrawn allegations in the discriminatory discharge claim is lacking. There is no
“similar conduct” nor do they involve any “causal nexus” and there are no common Respondent 25
decision makers between the 2 groups of allegations as the withdrawn discriminatory discharge
is silent (other than Cook’s involvement) as to any Respondent supervisor(s) or manager(s)
issuing the discharge. Cook did not claim that Respondent discharged him because he allegedly
asked for a witness at the discharge meeting.
30
In addition, the January 7 charge alleged a different class of unfair labor practices,
involving Cook’s discriminatory discharge under Section 8(a)(3) of the Act than the Section
8(a)(1) Weingarten allegations. There is also a boilerplate 8(a)(1) allegation that the employer
“interfered with, restrained and coerced” employees in the exercise of their Section 7 rights.
There is no evidence that the boilerplate verbiage was intended to allege any of the allegations 35
the General Counsel has in the complaint or the amended complaint – the 3 Weingarten
allegations against Respondent.

5 The Redd-I “closely related” test did not initially apply to complaint allegations of 8(a)(1)
violations, which were deemed covered by any timely charge by virtue of the inclusion of general “catch-
all” language in the Board’s preprinted charge form. As referenced in Section II. above, in Nickles
Bakery, supra, the Board overruled this practice and held that the Redd-I test should also apply to 8(a)(1)
allegations.
JD(SF)-34-16
11
As discussed above, once the alleged Cook discharge due to his alleged protected
activities was withdrawn after the Respondent presented its evidence, the factual relationship of
the proposed new 3 Weingarten allegations to the withdrawn discharge allegations is remote.
None of the allegations related to Cook’s discharge allegedly due to his protected activities
survived the June 2 withdrawal. There is no basis alleged in the complaint to conclude that 5
Respondent’s decision to discharge Cook was related at all to the new 3 Weingarten allegations.
Similarly, the late September 2015 and/or mid-December 2015, Weingarten allegations
did not grow out of the December 22, 2015 Cook discharge, they preceded it. Although the new
3 Weingarten allegations are serious, there is no factual nexus between them and Cook’s 10
December 22, 2015 discharge. The withdrawn Section 8(a)(3) discharge claim is factually
independent of the new 3 Weingarten allegations that are not part of any amended charge.
The General Counsel attempts to avoid the factual dissimilarity between the new and
untimely 3 Weingarten allegations and the withdrawn discriminatory discharge claim (GC’s 15
Supplemental Brief at 5-7) by arguing that that “[t]he allegations that Respondent denied Mr.
Cook’s requests to have a witness present during two interviews closely preceding his discharge
are encompassed by the broad language of Mr. Cook’s charge and are closely related to the
allegation related to his discharge.” If so, this would satisfy the second prong, as explained by
the Board in Carney Hospital, 350 NLRB 627, 630 (2007). The problem is they are not. As 20
I find, these new 3 Weingarten allegations are essentially unrelated to Cook’s withdrawn
discriminatory discharge claim. Merely alleging their relationship to the discharge that was
proven to be lawful cannot transform factually unrelated incidents into allegations related to the
very different allegation in the withdrawn charge.
25
Having found that the second prong of Redd-I is not met, I do not believe, in this case,
the claim of common legal theory can serve to protect the new allegations from a 10(b) defense.
Carney, supra at 631. Respondent also cites to dicta that has not been tested before the Board
when it cites to the Ivy Steel & Wire, Inc.6 case and several Circuit Court decisions that are not
controlling here as pointed out in the GC’s Supplemental Brief at 14.730
I adopt the legal findings and conclusions of the administrative law judge in Ivy Steel, and
further find that like in Ivy Steel, the legal theories of the Wright Line analysis for any
discriminatory discharge claim under Section 8(a)(3) are unrelated to the Section 8(a)(1) legal
theory needed to prove a Weingarten rights violation.8 35
The Respondent’s Motion is granted under these very unique facts as I find that the new 3
Weingarten allegations are unrelated to the withdrawn discriminatory discharge claim and the
new 3 Weingarten allegations are time barred.
40

6 346 NLRB 404, 421-422 (2006).
7 While these cases do not require me to follow a specific holding, they are instructive in my analysis of the
unique procedural path that this case comes to me.
8 Nor do I believe that the new 3 Weingarten claims call on the Respondent to raise the same or
similar defenses as required for the withdrawn discriminatory discharge claim, which is the 3rd prong of
Redd-I. They require entirely different defenses, factually and legally. See Ivy Steel, 346 NLRB at 421-
422.
JD(SF)-34-16
12
IV. In the Alternative, the Motion Is also Granted Because the Complaint Does Not
Allege Certain Actions on the Part of Respondent that Involve Unfair Labor
Practices.
Alternatively, Respondent’s final argument is that “the Act does not give non-unionized 5
employees Weingarten rights per IBM Corporation, 341 NLRB 1288, 1289 (2004).”
Consequently, the General Counsel cannot legitimately argue that Respondent “broke the law”
and acted unlawfully even if Respondent denied Cook permission to have a coworker present at
an investigatory interview that Cook reasonably believed might result in discipline in late
September and December 2015 or because Respondent maintains a national rule that prohibits all 10
its nonunionized employees Weingarten rights. Unlike the cases cited by the General Counsel
where the various unlawful acts sought to be added against employers for harassment, threats,
interrogation, surveillance, the conduct here alleged against Respondent is not currently
unlawful.
Any arguments regarding the legal integrity of Board precedent such as the IBM 15
Corporation case, however, are properly addressed to the Board. I find that I am bound to follow
the Board’s current holding in IBM Corporation that a nonunionized employer, like Respondent
here, does not act unlawfully under the Act and current Board law, when denying its employees
the same Weingarten rights that are available to employees in a unionized employer setting under
Weingarten. Thus, I grant Respondent’s Motion to Dismiss as to the remaining new 3 20
Weingarten allegations because as a matter of law under the IBM Corporation case, the
complaint does not allege facts that could prove that Respondent acted unlawfully in violation of
the Act by denying Cook his Weingarten rights or by maintaining a national rule that prohibits its
nonunionized employees their Weingarten rights.
The complaint is dismissed. 25
Dated, Washington, D.C. August 31, 2016
Gerald M. Etchingham
Administrative Law Judge30
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