Epilepsy Foundation of Northeast Ohio

DECISIONS OF THE NAITONAL LABOR RELATIONS BOARD 676 Epilepsy Foundation of Northeast Ohio and Arnis Borgs and Ashraful Hasan. Cases 8–CA–28169 and 8–CA–28264 July 10, 2000 DECISION AND ORDER BY CHAIRMAN TRUESDALE AND MEMBERS FOX, LIEBMAN, HURTGEN, AND BRAME On January 2, 1998, Administrative Law Judge Richard A. Scully issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed an answering brief. The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, find- ings,1 and conclusions only to the extent consistent with this Decision and Order. Introduction The General Counsel excepts to the judge’s finding that the Respondent did not violate Section 8(a)(1) of the Act by discharging employees Arnis Borgs and Ashraful Hasan. The General Counsel contends that both Borgs and Hasan were discharged for engaging in protected con- certed activity. In arguing that the discharge of Borgs is unlawful, the General Counsel requests the Board to once again consider the question of whether the principles set forth by the Supreme Court in NLRB v. J. Weingarten2 should be extended to employees in nonunionized work- places, to afford them the right to have a coworker present at an investigatory interview which the employee reasona- bly believes might result in disciplinary action. The Gen- eral Counsel contends that affording nonunionized em- ployees this right is consistent with the Court’s decision. We agree with the General Counsel’s contentions, includ- ing those concerning Weingarten, and for the reasons set forth below, find that the discharges of both Borgs and Hasan are unlawful. The Discharge of Arnis Borgs The essential facts pertaining to Borgs’ discharge are not in dispute. The Respondent provides services to per- sons affected by epilepsy. One of its programs involves a research project concerning school-to-work transition for teenagers with epilepsy. Borgs worked on this project as an employment specialist, and Ashraful Hasan was the Respondent’s transition specialist on this project. On January 17, 1996,3 Borgs and Hasan prepared a memo to the Respondent’s director of vocational services, Rick Berger, who was their supervisor on the project. The memo stated that Berger’s supervision of Borgs and Hasan was no longer required.4 A copy of this memo was also sent to the Respondent’s executive director, Christine Loehrke. Thereafter, Borgs and Hasan learned that Loe- hrke and Berger were very unhappy about the memo. In view of this reaction, on January 29, Hasan and Borgs prepared another memo, this time addressed to Loehrke, which elaborated on the reasons for their prior assertion that Berger’s supervision was no longer required. Specifi- cally, the memo was critical of Berger’s involvement in the program, and cited several examples of incidents where, in their view, Berger acted inappropriately. 1 The General Counsel has excepted to some of the judge’s credibil- ity findings. The Board’s established policy is not to overrule an ad- ministrative law judge’s credibility resolutions unless the clear prepon- derance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F. 2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 2 420 U.S. 251 (1975). 3 All dates hereafter are in 1996 unless stated otherwise. On February 1 Loehrke approached Borgs and directed him to meet with her and Berger. Borgs felt intimidated by the prospect of meeting with both Loehrke and Berger together because of a reprimand he received at a prior meeting with them,5 and expressed these reservations to Loehrke. Borgs asked if he could instead meet with Loe- hrke alone. Loehrke refused Borgs’ request. Borgs then asked if Hasan could be present with him at this meeting, but Loehrke refused this request as well. Borgs continued to express his opposition to meeting alone with Loehrke and Berger, and in response to this opposition, Loehrke told Borgs to go home for the day and report back at 9 a.m. the next morning. The following day, Borgs met with Loehrke and Jim Wilson, the Respondent’s Director of Administration. Loehrke told Borgs that his refusal to meet the previous day constituted gross insubordination and that he was ter- minated. Loehrke then gave Borgs a letter of termination.6 The judge found that the Respondent discharged Borgs for his persistent refusal to comply with Loehrke’s direc- tive to meet alone with her and Berger. The judge noted 4 The memo read as follows: Mr. Jim Troxell and Dr. Bob Fraser have continued to pro- vide supervisory input pertaining to service delivery and the re- search component of the study. During the past several months, Ms. Christine Loehrke has also provided input and assistance to the NIDRR School-to-Work Project. As mentioned during earlier discussions (albeit brief) with you, both Dr. Ashraful Hasan and Mr. Arnis Borgs reiterate that your supervision of the program operations performed by them is not required. Your input to the NIDRR project in the past is appreciated. At this stage, the major area which has to be addressed – deals with outreach. Only support staff assistance is needed in this re- gard. 5 In December 1995 Borgs was called into a meeting with Berger, Loehrke, and another supervisor, and was interrogated about his discus- sions about salary information with other employees. He was also reprimanded at that meeting for having the salary discussions. No exceptions were filed to the judge’s finding that this conduct violated Sec. 8(a)(1) of the Act. 6 In addition to describing the failure to attend the meeting as gross insubordination, the letter also made reference to the January 17 memo, as well as to a “failure to build constructive work relationships with management personnel,” and a “resistance to accept responsibility for attempting to attain articulated performance goals.” The letter did not refer to these other acts as examples of gross insubordination. 331 NLRB No. 92 EPILEPSY FOUNDATION OF NORTHEAST OHIO 677 that, under Weingarten, employees in unionized work forces are entitled to representation in investigatory inter- views which the employee reasonably believes could re- sult in disciplinary action, but under current Board prece- dent, employees in nonunionized workplaces do not have the right to have a coworker present in similar circum- stances. E. I. DuPont & Co., 289 NLRB 627 (1988). Ac- cordingly, the judge found that Borgs had no statutory right to condition his attendance at the meeting on the presence of Hasan, and thus, the Respondent’s discharge of Borgs for refusing to attend the meeting did not violate Section 8(a)(1) of the Act. We agree with the judge’s finding that Borgs was dis- charged for refusing to attend the meeting with Loehrke and Berger.7 We also agree that the judge accurately ap- plied the relevant Board precedent. After careful consid- eration, however, we find that precedent to be inconsistent with the rationale articulated in the Supreme Court’s Wein- garten decision, and with the purposes of the Act. Consequently, we shall overrule that precedent today and find that the Respondent’s termination of Borgs for his attempt to have a coworker present at the meeting was unlawful. Our examination of this issue begins with the Supreme Court’s seminal Weingarten decision. There, as noted above, the Court held that an employer violated Section 8(a)(1) by denying an employee’s request that a union representative be present at an investigatory interview which the employee reasonably believed might result in disciplinary action. The Court, in upholding the Board’s finding of a violation, found that the employee’s action in seeking representation in such circumstances “falls within the literal wording of Section 7 of the Act that “[e]mployees shall have the right . . . to engage in . . . con- certed activities for the purpose of mutual aid or protec- tion.” Id. at 260. The Court explained further as follows: The union representative whose participation he seeks is however safeguarding not only the particular em- ployee’s interest, but also the interests of the entire bargaining unit by exercising vigilance to make cer- tain that the employer does not initiate or continue a practice of imposing punishment unjustly. Id. Read together, these statements explain that the right to the presence of a representative is grounded in the ration- ale that the Act generally affords employees the opportu- nity to act together to address the issue of an employer’s practice of imposing unjust punishment on employees. Because the facts at issue in Weingarten involved a re- quest for the presence of a union representative, the Court’s decision did not specifically refer to circumstances involving the request for a coworker representative in nonunion settings. The Board, however, has addressed this precise issue on several occasions. In Materials Re- 7 We also note that the Respondent does not contend that Borgs was discharged for any other reason. search Corp., 262 NLRB 1010 (1982), the Board found that the Weingarten right includes the right to request the presence of a coworker at an investigatory interview in a nonunion setting. In that case, the Board relied on the fact that Weingarten emphasized that the right to the assistance of a representative is derived from the Section 7 protection afforded to concerted activity, rather than from a union’s right pursuant to Section 9 to act as the employee’s repre- sentative for the purpose of collective bargaining. Conse- quently, the Board found that the ability to avail oneself of this protection does not depend on whether the employees are represented by a union. The Board overruled Materials Research Corp., how- ever, in Sears, Roebuck & Co., 274 NLRB 230 (1985), and held there that Weingarten principles do not apply in circumstances where there is no certified or recognized union. In that case, the Board specifically rejected the prior decision’s reliance on the fact that the Weingarten rights are based on Section 7, stating that “[t]he scope of Section 7’s protections may vary depending on whether employees are represented or unrepresented. . . .” The Board also expressed the view that extending Weingarten rights to employees not represented by a union is inconsis- tent with the Act because it infringes on an employer’s right to deal with employees on an individual basis when no union is present. Id. at 231. The Board modified the Sears rationale in E. I. DuPont & Co., 289 NLRB 627 (1988). In that case, the Board adhered to its position that Weingarten rights are not ap- plicable in nonunion settings, but acknowledged that “the statute might be amenable to other interpretations.” Id. at 628. Thus, the Board specifically disavowed Sears insofar as it held that the Act compels a finding that Weingarten rights are applicable only in unionized workplaces. Id. at fn. 8. The Board, however, declined to return to the rule of Materials Research for several reasons. First, the Board stated that the Court in Weingarten placed the issue in the context of the Act’s purpose of redressing the per- ceived balance of economic power between labor and management, and that this consideration is of lesser sig- nificance if the employees are not represented by a union. Second, the Board stated that in a nonunion setting, the employee representative has no obligation to represent the interests of the entire unit, and thus, it is less likely that the representative’s presence will safeguard the interests of employees as a group. Id. at 629. Third, the Board stated that it is less likely that the employee representative would have the skills equivalent to those that a union representa- tive would have to provide effective representation to the employee. Id. Finally, the Board stated that the assertion of a Weingarten right might be more detrimental to the employee in a nonunion setting if the employer then de- cides to forego the interview rather than conduct it with an employee representative. The Board explained that, unlike the union-represented employee who had a framework for resolving grievances, the unrepresented employee could DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 678 lose his only opportunity to present his side of the issue. Id. at 630. Accordingly, while recognizing that the Board’s holding in Materials Research was not necessarily inconsistent with the purposes of the Act, the Board in Dupont declined to return to the holding of that case. We disagree with the Board’s holdings in Sears and Dupont, and find that a return to the rule set forth in Mate- rials Research, i.e., that Weingarten rights are applicable in the nonunionized workplace as well as the unionized workplace, is warranted .8 Sears and Dupont misconstrue the language of Weingarten and erroneously limit its ap- plicability to the unionized workplace. In our view, the Board was correct in Materials Research to attach much significance to the fact that the Court’s Weingarten deci- sion found that the right was grounded in the language of Section 7 of the Act, specifically the right to engage in “concerted activities for the purpose of mutual aid or pro- tection.” This rationale is equally applicable in circum- stances where employees are not represented by a union, for in these circumstances the right to have a coworker present at an investigatory interview also greatly enhances the employees’ opportunities to act in concert to address their concern “that the employer does not initiate or con- tinue a practice of imposing punishment unjustly.”9 Thus, affording Weingarten rights to employees in these circum- stances effectuates the policy that “Section 7 rights are enjoyed by all employees and are in no wise dependent on union representation for their implementation.” Glomac Plastics, Inc., 234 NLRB 1309, 1311 (1978).10 We find no merit to the contention raised in Sears, and subsequently disavowed in Dupont, that the imposition of Weingarten rights in these circumstances “wreaks havoc” with the provisions of the Act that enable an employer to deal with employees on an individual basis when no union is present. The Act clearly protects the right of employ- 8 We agree with Member Hurtgen that the Board should not reverse important legal doctrine absent compelling considerations for doing so. Contrary to our colleague, however, we find that such compelling con- siderations are present here because, as explained below, the doctrine infringes on the exercise of Sec. 7 rights and is inconsistent both with Supreme Court precedent and the policies of the Act. 9 Member Hurtgen asserts that the Court in Weingarten could not have contemplated the affording of such a right to employees in a non- union setting because the Court in its discussion referred to the role played by “the union representative whose participation [the employee] seeks” in safeguarding the interests of “the bargaining unit.” These terms, however, are necessary to accurately describe the unionized circumstances that were before the Court in that case. In view of the Court’s reference to this right as one grounded in Sec. 7 of the Act, the Court’s use of the terms “union representative” and “bargaining unit” does not establish that the Court did not envisage the right to such representation in a nonunion setting. 10 We disagree with our dissenting colleagues’ assertions that Sec. 7 of the Act gives nonunionized employees only the right to seek the assistance of a coworker at an investigatory interview, not the right to the actual assistance. It is the actual presence of the coworker, not the request for one, that affords employees the ability to act in concert for mutual aid or protection. In our view, the right to make such a request is devoid of any substance without a corresponding right to have the request granted. ees—whether unionized or not—to act in concert for mu- tual aid or protection. Further, as noted above, the right to have a coworker present at the investigatory interview affords unrepresented employees the opportunity to act in concert to prevent a practice of unjust punishment.11 While an employer is generally free to deal with employ- ees individually in the absence of union representation, an employer may not mask the obstruction of employee ef- forts to exercise Section 7 rights by asserting a right to deal on an individual basis. See generally, Ontario Knife Co. v. NLRB, 637 F.2d 840, 844-850 (2d Cir. 1980). Member Brame contends that, by granting a nonunion- ized employee the right to have a coworker present in an investigatory interview, we are forcing the employer to “deal with” the equivalent of a labor organization, and that this conflicts with the exclusivity principle embodied in Section 9(a) of the Act. This contention was squarely ad- dressed and soundly rejected by the Third Circuit Court of Appeals in Slaughter v. NLRB, 794 F.2d 120 (1986). “The entire argument,” the court said, “rests upon a non sequi- tur.” Id. at 127. [T]he system of exclusive representation . . . which [it is claimed] . . . would be derogated from by the exten- sion of Weinarten to the unorganized, is expressly one of collective bargaining, not of dealing. Accordingly, if, as the Supreme Court held, the employer has no statutory duty to bargain with the Weingarten repre- sentative, the function of that representative in the un- organized setting cannot be in derogation of the ex- clusivity principle or any other important statutory policy. Id. at 128. In other words, even assuming that the role of an em- ployee representative in an investigatory interview is equivalent to “dealing with” the employer, the argument advanced by Member Brame is irrelevant. “Dealing” is not equivalent to “collective bargaining,” and the employer is not required to “bargain collectively” with the Weingarten representative. As the Third Circuit held, the Section 9(a) exclusivity principle does not limit the Section 7 rights of 11 Member Hurtgen asserts that our holding today alters the balance between an employee’s interest in assistance and “an employer’s inter- est in having an unfettered investigation.” He fails to state, however, how the presence of such a representative would impair the ability to have an “unfettered investigation.” In our view, such speculation does not warrant depriving employees of the opportunity to act for mutual aid or protection in these circumstances. Member Brame asks why nonunionized employees should be enti- tled to the presence of a coworker at an investigatory interview when nonunionized employees are not entitled to the presence of a coworker at meetings to discuss other issues. The answer to this question, of course, is that the principles set forth in the Supreme Court’s Wein- gargten decision speak only to this specific right. Member Brame’s speculation about other circumstances involving nonunionized employ- ees is not encompassed within the Weingargten rationale, and is not before us today. Thus, there is no merit to his assertion that our deci- sion today has implications beyond the specific rule enunciated here. In fact, our holding has no greater or less applicability than did the Board’s prior holding in Materials Research. EPILEPSY FOUNDATION OF NORTHEAST OHIO 679 nonunionized employees. In any event, if Member Brame insists that we are forcing a nonunionized employer to deal with the equivalent of a labor organization, he must also believe that an employer would violate Section 8(a)(2) of the Act by voluntarily allowing an employee to have a coworker present during the investigatory interview. We find this logic to be strained. More important, it misses the point, discussed above, that an employer is completely free to forego the investigatory interview and pursue other means of resolving the matter. Thus, contrary to Member Brame’s assertion, there is no obligation to deal with an employee representative of nonunionized employees. We also find that the concerns raised by the Board in Dupont do not warrant allowing an employer to prohibit the exercise of Weingarten rights in nonunionized work- places. Specifically, we take issue with Dupont’s reliance on the notions that the coworker has “no obligation” to represent the interests of fellow employees, and that the nonunionized coworker is less likely to have the skills necessary to provide representation comparable to that provided by a shop steward or some other union represen- tative. The notion that employees in such circumstances would not be motivated to act in the interests of their fel- low workers, or that employees might lack the abilities to offer constructive assistance to the interviewed employee, is wholly speculative.12 It also misses the point that the employee is free to choose whether to request or forego representation. What is important is the availability of the option. Moreover, Section 7 rights do not turn on either the skills or the motives of the employee’s representative. Thus, these supposed concerns do not legitimately warrant foreclosing employees from the opportunity to avail them- selves of the protections of the Act. We also cannot agree with the statement in Dupont that extending Weingarten rights to the nonunion workplace will actually work to the detriment of employees by en- couraging employers to forego the investigatory interview and, thus, leave the aggrieved employee without an oppor- Id. at 611– 12 Indeed, Member Brame’s dissent relies heavily on such specula- tion. He speculates that the nonunionized coworker would be more hostile to the employer, less likely to have the same incentives to safe- guard the wider interests of fellow employees, and unlikely to be of any assistance to the employer. As mentioned above, such speculation cannot serve as a legitimate basis for depriving employees of the right to act in concert for mutual aid and protection. The likelihood that any particular concerted activity will ultimately achieve its intended result is not the controlling consideration in determining whether that activity is protected by Sec. 7 of the Act. What is important is that employees are afforded the opportunity to “engage in concerted activities for mu- tual aid or protection.” To that end, we find that Member Brame’s emphasis on the notion that a coworker representative may not effec- tively serve the employer’s interests reveals a disproportionate focus on the employer’s interests at the expense of denying employees their right and opportunity to engage in Sec. 7 activity. Further, we disagree with Member Brame’s assertion that our refusal to engage in similar speculation “flies in the face of Weingarten itself.” Although the Court mentioned that a knowledgeable union representa- tive “could” be of assistance to the employer, it did not limit this right to circumstances where the representative might be of such assistance. tunity to tell his or her side of the story. 289 NLRB at 630. This too is based wholly on speculation, and assumes the worst in employer motives. In addition, such rationale ignores the fact that employees are not obligated to request the presence of a Weingarten representative, and—as in the unionized workplace—can freely evaluate the strategic merits of any particular course of action in this regard. Finally, we find no force in Member Hurtgen’s conten- tion that affording Weingarten rights to nonunionized em- ployees places an “unknown trip wire” on employers who are legitimately pursuing investigations of employee con- duct. Our colleague speculates that employers in nonun- ionized settings will be completely unaware of an em- ployee’s right to a Weingarten representative. We do not agree with his speculation. In any event, we fail to under- stand how an employer’s ignorance of employee rights provides a justification for denying those rights to employ- ees. In sum, we hold today that the rule enunciated in Wein- garten applies to employees not represented by a union as well as to those that are. We overrule the Board’s decision in Dupont and return to the standard set forth in Materials Research Corp. In addition, we also shall apply the rule enunciated today to the facts of this case and find that the Respondent violated Section 8(a)(1) of the Act by termi- nating Borgs for insisting on having his coworker, Hasan, present at an investigatory interview. Such application is warranted in view of the well-settled retroactivity doctrine. As the court stated in NLRB v. Bufco Corp., 899 F.2d 608 (7th Cir. 1990): Generally, a decision which changes existing law or policy is given retroactive effect unless retroactive application would cause “manifest injustice.” NLRB v. Affiliated Midwest Hospital, 789 F.2d 524 (7th Cir. 1986) (quoting NLRB v. Lyon & Ryan Ford, Inc., 647 F.2d 745, 757 (7th Cir. 1981) [*612] (citing Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S. Ct. 349, 30 L. Ed. 2d 296 (1971)). In determining whether manifest injustice is caused by the retroactive application of a Board rule we consider the following: “the reliance of the parties on pre-existing law, the effect of retroactivity on accomplishing the purpose of the law; and any injustice arising from retroactive application.” NLRB v. Chicago Marine Containers, Inc., 745 F.2d 493, 499 (7th Cir. 1984). 612. We find that the application of the Weingarten rule in this case will not work a manifest injustice. First, there is no evidence in the record even remotely suggesting that the Respondent was relying on the state of Board law when it decided to take action against Borgs. Second, applying the rule in this proceeding serves to correct ef- fects of the imposition of discipline on an employee for availing himself of the right to engage in protected activ- ity, and thus, serves the purpose of promoting the right of employees to engage in concerted activity for mutual aid DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 680 and protection. Indeed, the purposes of the Act are not served by subjecting Borgs to the continued consequences of his discharge. Finally, we see no great injustice to the Respondent in finding a violation here and requiring the reinstatement of Borgs, particularly in view of the 8(a)(1) findings by the judge that have not been excepted to,13 as well as those discussed infra, which demonstrate that the Respondent was not receptive to the right of its employees to engage in protected concerted activity. Accordingly, for all these reasons, we find that by dis- charging Arnis Borgs for demanding that a coworker ac- company him at an investigatory interview, the Respon- dent violated Section 8(a)(1) of the Act as alleged.14 The Reprimand and Discharge of Ashraful Hasan As discussed above, Hasan worked as a transition spe- cialist for the Respondent’s school-to-work transition pro- ject. The record shows that, beginning around August 1995 Hasan engaged in concerted activity together with Borgs. From August through December 1995 Hasan and Borgs organized and engaged in a brown bag lunch pro- gram whereby employees would get together to discuss matters of mutual concern. Further, in November 1995 Hasan and Borgs started an ethics committee which gave employees an opportunity to address problems concerning employee relations and delivery of service to clients. Two meetings of the ethics committee were held in November 1995, and minutes of the meetings were posted at the Re- spondent’s office. In addition, sometime prior to October 5, 1995, Hasan reviewed his personnel file and discovered a memo from Berger, dated June 7, 1995, referencing an earlier misun- derstanding Hasan and Borgs had with Berger concerning the hiring of an interpreter without following the Respon- dent’s subcontracting procedure. Although Hasan and Borgs believed that the misunderstanding surrounding this incident had been resolved to everyone’s satisfaction, the memo stated that Hasan and Borgs had been given verbal warnings for their actions concerning this incident. On October 5, 1995, Hasan wrote a memo to Berger in which he complained about the warnings in the personnel files 13 In addition to the findings discussed supra at fn. 5, there were no exceptions to the judge’s finding that the Respondent violated Sec. 8(a)(1) by promulgating a rule prohibiting employees from discussing wage information with other employees. 14 Because we find that the Respondent unlawfully discharged Borgs for attempting to avail himself of the right to have a coworker accom- pany him at an investigatory interview, we find it unnecessary to pass on the General Counsel’s contention that the Respondent’s discharge of Borgs was unlawful even absent a return to the rule set forth in Materi- als Research Corp. Because we find that the reason for Borgs’ discharge was his refusal to participate in an investigatory interview without the presence of a coworker, the appropriate remedy is reinstatement with backpay. Safeway Stores, Inc., 303 NLRB 989 (1991). Thus, the instant case is distinguishable from Taracorp., Inc., 273 NLRB 221 (1984), and its progeny, which hold that an employee denied his Weingarten rights is not entitled to reinstatement and backpay if he has been discharged for misconduct or any other nondiscriminatory reason. and demanded an explanation. Hasan gave copies of the memo to Borgs and Loehrke. Shortly thereafter, Berger, with the assistance of Loehrke, sent a responding memo to Hasan which criticized the insubordinate tone of Hasan’s memo and accused Hasan of undermining Berger’s super- vision of Borgs by sending a copy of the memo to him. Also, as set forth above, Hasan—along with Borgs— prepared the January 17 and 29 memos criticizing Ber- ger’s supervision of them. As with Borgs, Hasan was di- rected to meet with Loehrke and Berger on February 1. Unlike Borgs, however, Hasan agreed to meet alone with them. At this meeting, Loehrke expressed her displeasure with the January 17 memo.15 Hasan responded by stating that the memo was a needs assessment. Hasan was then given a written warning, stating that the January 17 memo constituted insubordination and that any further acts of misconduct or insubordination by Hasan would result in his immediate discharge. Thereafter, about March 6 Berger gave Hasan a copy of his evaluation. Hasan did not sign off on the evaluation, and told Berger that he would be adding some comments to the evaluation, as he had done on previous evaluations. About March 13 or shortly thereafter, Berger presented Hasan with written personal performance goals. As with his evaluations, Hasan had some comments to add to the performance goals, and consequently did not sign off on the document upon receiving it from Berger. On March 25 Hasan was called to Loehrke’s office whereupon she advised him that he was terminated.16 On March 29, Hasan was given a termination letter from Loe- hrke explaining that over the past 9 months the Respon- dent had raised concerns with Hasan about his conduct. The letter further indicated that the more serious concerns included Hasan’s continued refusal to accept supervision, and Hasan’s various confrontations with other staff mem- bers. The letter did not discuss or refer to any specific incident, but stated that he was being terminated because of his “demonstrated conduct.” The judge found that the Respondent did not violate Section 8(a)(1) of the Act by reprimanding and terminat- ing Hasan. The judge began his analysis by finding no evidence of animus towards Hasan’s involvement with the brown bag lunch program and the ethics committee. The judge further found that these events, as well as the Octo- ber dispute concerning the memo in the personnel files, although protected, were remote in time and unrelated to the events leading to his discharge. The judge next found that the January 17 memo to Ber- ger from Hasan and Borgs, although concerted, was not 15 Hasan testified that Loehrke expressed her annoyance with the January 29 memo. Loehrke testified, however, that she only referred to the January 17 memo at the meeting. The judge did not resolve this discrepancy in the testimony. 16 Hasan testified that he was given no reason for his termination at the meeting. Loehrke’s notes state that she raised the failure to sign the performance objectives at the meeting. EPILEPSY FOUNDATION OF NORTHEAST OHIO 681 activity protected by the Act. Specifically, the judge re- jected the assertion that the memo was a needs assessment, and instead found it to be an attempt by Hasan and Borgs to dismiss Berger as their supervisor on the project. The judge also regarded the January 29 memo as nothing more than an after-the-fact attempt at damage control. Thus, the judge found the memo writing was not protected because it failed to raise concerns about the quality of the project or of Berger’s supervision. Accordingly, the judge found the Respondent’s reprimand of Hasan for this conduct did not violate Section 8(a)(1). Finally, the judge noted that the record showed that Hasan had been involved in several incidents having noth- ing to do with protected activity, including the incidents involving the hiring of the interpreter, his demands for preferential clerical assistance, an incident in which Hasan was accused of not showing sensitivity towards the parents of an agency client, and Hasan’s failure to sign the Re- spondent’s statement of performance objectives. In view of these incidents, as well as the circumstances surround- ing the January memos, the judge concluded that there was no evidence to support an inference that animus towards protected activity was a motivating factor in the Respon- dent’s decision to discharge Hasan. Accordingly, the judge found that the Respondent’s discharge of Hasan did not violate Section 8(a)(1) of the Act. We disagree with the judge’s finding that Hasan’s rep- rimand and discharge were lawful. Applying the princi- ples set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 800 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), we find, contrary to the judge, that the General Counsel has shown that Hasan’s protected activity was a motivating factor in the Respondent’s decision to repri- mand and thereafter terminate him, and that the Respon- dent has failed to show that it would have taken this action against Hasan even in the absence of his protected activity. We find error with the judge’s primary finding with re- spect to Hasan, i.e., that the January 17 memo by Hasan and Borgs did not constitute protected concerted activity. Specifically, we disagree with the finding that the memo was not protected because it was an attempt to dismiss Berger as their supervisor. Even assuming that was the sole or primary purpose of the memo, such purpose does not remove the conduct from the protections of the Act. Indeed, the attempt by employees to cause the removal of their supervisor is protected when “it is evident that [the supervisor’s conduct] had an impact on employee working conditions.” Caterpillar, Inc., 321 NLRB 1178, 1179 (1996), vacated as moot (March 19, 1998), citing Hoytuck Corp., 285 NLRB 904 fn. 3 (1987). Clearly, Berger’s supervisory duties had a significant impact on Hasan’s terms and conditions of employment, as evidenced by the warnings he received, his evaluations, and his ultimate discharge.17 We also find, contrary to the judge, that the January 17 memo was inextricably intertwined with the January 29 memo, which also implicated terms and conditions of em- ployment by its discussion of the problems they were hav- ing with Berger. Thus, insofar as Loehrke and Berger had read both memos by February 1, they fully understood that the issues raised in the January 17 memo were not separate from the concerns about Borgs and Hasan were being treated by their supervisor as set forth in the subsequent memo.18 Thus, the memo writing clearly was an attempt by Hasan and Borgs to raise issues related to their condi- tions of employment, and, consequently Loehrke’s repri- mand of Hasan for engaging in this conduct violated Sec- tion 8(a)(1) of the Act.19 We further find that, in view of our finding that Hasan’s involvement in the January 17 memo constitutes protected concerted activity, the Respondent’s termination of Hasan was unlawful. Indeed, as noted above, the Respondent placed Hasan on the verge of termination for his involve- ment with the memo, as evidenced by the formal repri- mand which included the warning that any other acts of misconduct would result in his termination. Also, Hasan’s termination letter referred to concerns the Respondent had raised about Hasan’s conduct over the past 9 months, and during this period Hasan had angered the Respondent by protesting the written warnings placed into his and Borgs’ 17 We find no merit to Member Hurtgen’s contention that the Janu- ary 17 memo was unprotected because the General Counsel did not establish that the memo related to supervisory conduct affecting the employees. To the extent that the Respondent could have initially harbored some doubt as to whether the memo was related to Berger’s impact on Hasan and Borgs’ terms and conditions of employment, any such doubt was clearly laid to rest by the memo Loehrke received on January 29. As noted above, that memo elaborated on the assertion made in the January 17 memo, and specifically referenced issues such as Berger’s use of threatening and abusive language towards employ- ees, Berger requiring Hasan to personally pay for his clients’ medical services, critical allegations that Berger placed in Hasan’s personnel file, and Berger’s critical comments about Hasan’s salary negotiations. Thus, neither Lutheran Social Services, 250 NLRB 35 (1980), nor Hoytuck Corp., supra, cited by our colleague, supports his position, because the Board held in both cases that such activity is protected when the supervisor’s conduct relates to the employees’ conditions of employment. 18 In agreeing with the judge’s finding that the January 29 memo was an after-the-fact attempt at damage control, Member Brame contends— at least implicitly—that the January 17 memo must have related to something other than supervisory conduct affecting the employees. There is no evidence in support of this contention. To the contrary, the fact that the Respondent took no action until after receiving the January 29 memo reasonably suggests that, at the time it disciplined Hasan on February 1, the Respondent understood that both memos related to supervisory conduct affecting the employees. Consequently, we find that the cases cited by Member Brame in his dissent do not support a finding that Hasan’s discharge was lawful. 19 Because the memos of January 17 and 29 are inextricably inter- twined, we find it unnecessary to resolve the discrepancy in the testi- mony as to which of the memos Loehrke expressed her annoyance with at the February 1 meeting with Hasan. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 682 personnel files. We agree with the judge that this conduct by Hasan constituted protected activity. Thus, it is clear that the Respondent’s animus towards Hasan’s protected activity was a motivating factor in its decision to terminate him. Accordingly, we find that the General Counsel has established a prima facie case under Wright Line that Hasan’s discharge was unlawful. We further find that the Respondent has failed to sustain its burden under Wright Line of showing that it would have discharged Hasan even absent his protected con- certed activity. The Respondent contends that it dis- charged Hasan because he refused to sign the statement of personal project objectives Berger gave him. It is appar- ent, though, that the discharge was not solely due to the failure to sign the performance objectives, but rather was linked to the Respondent’s anger at Hasan for his pro- tected activity, especially his involvement with the January 17 memo. Indeed, Loehrke testified that the failure to sign was the “final straw” for her. Further, as noted above, Hasan was warned that any future acts of misconduct would result in his discharge, thus, further suggesting that the failure to sign would not, by itself, warrant discharge. Moreover, we note that Hasan’s termination letter made no reference to the failure to sign the performance objectives, thus, casting further doubt as to whether the Respondent was actually discharging him for that reason, as it con- tends. In view of these facts, we are unable to conclude that the Respondent would have discharged Hasan in the absence of his protected activity, and accordingly find that its discharge of Hasan violated Section 8(a)(1) of the Act. ORDER The Respondent, Epilepsy Foundation of Northeast Ohio, Cleveland, Ohio, its officers, agents, successors and assigns, shall 1. Cease and desist from (a) Coercively interrogating employees concerning con- certed activity protected by the Act. (b) Issuing disciplinary warnings to employees for dis- closing or discussing their wages with other employees. (c) Threatening employees with reprisals for disclosing or discussing their wages with other employees. (d) Maintaining a rule prohibiting employees from dis- closing or discussing their wages with other employees. (e) Issuing disciplinary warnings to employees for en- gaging in protected concerted activities. (f) Discharging employees for engaging in protected concerted activities. (g) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind its policy prohibiting employees from dis- cussing their wages with other employees. (b) Within 14 days from the date of this Order, offer Arnis Borgs and Ashraful Hasan full reinstatement to their former jobs or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their sen- iority or any other rights or privileges previously enjoyed. (c) Make Arnis Borgs and Ashraful Hasan whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner pre- scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest computed in the manner set forth in New Ho- rizons for the Retarded, 283 NLRB 1173 (1987). (d) Within 14 days from the date of this Order, remove from its files any reference to the unlawful warnings and discharges, and within 3 days thereafter notify the em- ployees in writing that this has been done and that the warnings and discharges will not be used against them in any way. (e) Preserve and, within 14 days of a request, make available to the Board or its agents for examination and copying, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (f) Within 14 days after service by the Region, post at its facility in Cleveland, Ohio, copies of the attached notice marked “Appendix.”20 Copies of the notice, on forms provided by the Regional Director for Region 8, after be- ing signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately on receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to ensure that the notices are not altered, de- faced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed down the facility in- volved in these proceedings, the Respondent shall dupli- cate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since December 28, 1995. (g) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsi- ble official on a form provided by the region attesting to the steps that the Respondent has taken to comply. MEMBER HURTGEN, dissenting in part. In E. I. DuPont & Co., 289 NLRB 627 (1988), the Board held that Weingarten1 rights do not apply to em- ployees in nonunion facilities. This principle has been followed since that time, and no court has disagreed with it. Nor is there a showing that the principle has led to in- 20 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” 1 420 U.S. 251 (1975). EPILEPSY FOUNDATION OF NORTHEAST OHIO 683 dustrial strife. Despite all of this, my colleagues now abruptly reverse precedent and apply Weingarten to non- union facilities. By so doing, they take away from a non- union employer its heretofore unfettered right under the Act to deal individually with its employees. Initially, I note that there are values in having laws that are stable, predictable and certain. Thus, we should not reverse important legal doctrine in the absence of compel- ling considerations for doing so. In finding such compelling considerations, the majority says that extant law “infringes upon Section 7 rights and is inconsistent both with Supreme Court precedent and the policies of the Act.” I disagree. As discussed below, Sec- tion 7, at most, protects nonunion employees in their seek- ing assistance at an investigatory interview.2 Section 7 does not require the employer to accede to that request. As also discussed below, neither Supreme Court precedent nor the Act compels the employer to accede to the request. Thus, the employer has a right to decline the request, and to proceed with the interview with the employee alone. If the employee refuses to be interviewed, he/she is insubor- dinate and can be disciplined for such insubordination. To the extent that there are compelling considerations, they point toward preserving the status quo. These con- siderations are set forth in Dupont, and there is no need to repeat them here. I need add only a few further thoughts, and a refutation of the arguments of my colleagues. First, let us be clear that the issue is not whether an em- ployee has a Section 7 right to seek the assistance of a co- employee at an investigatory interview. I assume arguendo that there is a Section 7 right to seek such mutual aid or protection, and that an employer therefore could not dis- charge an employee for seeking that assistance. However, the issue here is whether the employer is obligated to grant the employee’s request. That is, does federal law forbid a nonunion employer from dealing individually with an employee during an interview with that employee? Phrased differently, does the employer violate the Act if the employer requires the employee to attend the interview by himself, and discharge the employee for insubordina- tion if he refuses? In Dupont, those questions were an- swered in the negative, and my colleagues would now answer them in the affirmative. The current law is well grounded in Weingarten itself. As noted above, the Supreme Court held that, in a union- ized setting, the employee is entitled to union representa- tion at the interview. The Court’s rationale is instructive: The union representative whose participation [the employee] seeks is however safeguarding not only the particular employee’s interest, but also the interests of the entire bargaining unit by exercising vigilance to 2 The term “interview,” as used here, is used in its Weingarten, sense, i.e., an investigatory interview of an employee in circumstances which reasonably lead the employee to believe that discipline might result. make certain that the employer does not initiate or continue a practice of imposing punishment unjustly. Clearly, in a unionized setting, the “union representa- tive” is charged with “safeguarding . . . the interests of the entire bargaining unit.” Equally clearly, in a nonunion setting, there is no “union representative,” and there is no “bargaining unit.” Thus, it is plain that the Court in Wein- garten did not envisage rights to representation in a non- union setting. Further, the differences between a unionized workforce and a nonunion workforce are clear and obvious. The employer in the former situation acts at its peril when it deals directly with an employee with respect to an em- ployment-related matter. By contrast, in a nonunion set- ting, the employer is completely free under the Act to deal with an individual employee as it wishes.3 My colleagues have now obliterated that clear line. They forbid the non- union employer from exercising its management right to interview an employee on an individual basis. There is another difference between a unionized context and a nonunion context. As the Court noted in Weingar- ten, the presence of a union representative in a unionized context may actually help the interview process. The un- ion representative knows the discipline provisions of the collective-bargaining agreement, and can offer those rele- vant insights at the interview. Also, the union representa- tive knows the grievance-arbitration provisions of the agreement, and can apprise the employer of the risks that it faces if discipline is imposed. None of this is true in a nonunion setting. There is no collective-bargaining agreement, and there is no griev- ance-arbitration provision under such an agreement. Of course, this is not to say that an employee-assistant in a nonunion setting would be unintelligent or unhelpful. It is simply to recognize that such an assistant is not offering the same insights as does a union representative who oper- ates under a union contract containing discipline provi- sions and grievance-arbitration procedures. My colleagues have altered the delicate balance achieved in Weingarten. That balance involves the “diffi- cult and delicate responsibility of reconciling conflicting interests of labor and management.”4 More particularly, the balance is between the individual employee’s interest in assistance at the interview and the employer’s interest in having an unfettered investigation of allegations of mis- conduct. In striking that balance, the Court noted, inter alia, the unions’ interest in representing all of the unit employees, the expertise and special knowledge of the union represen- tative, and the industrial practice under which many col- lective-bargaining agreements contain “Weingarte—type” provisions. Of course, none of these factors is present in a 3 See Linden Lumber v. NLRB, 419 U.S. 301 (1974); and J. I. Case v. NLRB, 321 U.S. 332 (1944). 4 Weingarten at 267. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 684 nonunion situation. Thus, the delicate balance in favor of representational assistance in a unionized situation tilts decidedly the other way in a nonunion situation. Moreover, by grafting the representational rights of the unionized setting onto the nonunion workplace, employers who are legitimately pursuing investigations of employee conduct will face an unknown trip-wire placed there by the Board. Employers in a nonunion setting will generally be completely unaware of this right to representation that the Board is imposing on them. The workplace has become a garden of litigation and the Board is adding another cause of action to flower therein, but hiding in the weeds. Finally, my colleagues assert that it is speculative to say that the presence of a third party would impair the inter- view. In this regard, my colleagues have missed the point. In a nonunion setting, the employer makes the judgment as to whether the interview would be enhanced or impaired by the presence of a third party. If the employer makes the judgement that the interview would be impaired, it is not the role of the Government to say that this judgement is incorrect. The same point obtains with respect to the majority’s assertion that the employer is free to forego the interview. Again, if the employer makes the judgment that an inter- view is more helpful than a noninterview (in terms of as- certaining facts), that is a judgement for the employer to make. For all of the foregoing reasons, I would uphold extant law, and find no violation.5 In addition, even if extant law is now changed (as it is by my colleagues), it is most un- fair to apply the new law to Respondent in this case. The Respondent acted consistently with extant law when it denied Borgs’ request for representation. Rather, it was Borgs who acted contrary to legal principles when he in- sisted on representation. In these circumstances, it is “manifestly unjust” to now say that Respondent was the one who acted unlawfully.6 Discharge of Hasan I agree with the judge that the discharge of Hasan was lawful. The judge found, as a fact, that Hasan was dis- charged because of the January 17 memo from Hasan and Borgs to Berger (copy to Executive Director Loehrke). The judge also found, as a matter of law, that the memo was unprotected. Clearly, the judge was correct. The memo sought the dismissal of Berger as a supervisor. The act of seeking the dismissal of a supervisor is unprotected, unless there is a showing that the dismissal is sought as a means of rectifying supervisory conduct which has a direct adverse impact on the employee’s terms and conditions of 5 I do not pass on the issue of whether the Act compels the result that I have reached. See Slaughter v. NLRB, 876 F.2d 11 (1986) (the court said that Board erroneously assumed that the Act mandated this result). Rather, I simply conclude that the policies of the Act strongly militate in favor of that result. 6 NLRB v. Bufco Corp., 899 F.2d 608 (7th Cir. 1990). employment.7 Here, the memo did not even mention any adverse impact of Berger’s conduct. It simply declared that Berger’s supervision was no longer required. Indeed, the memo expressed gratitude for Berger’s past services. My colleagues misread my position with respect to the January 17 memo. I am not saying that the letter seeking the supervisor’s discharge must itself refer specifically to the manner in which the supervisor affects employees. Rather, I am saying that the General Counsel must estab- lish, in some fashion, that supervisory conduct affected the employees, and that this was the reason for their seeking the discharge of the supervisor. In the instant case, this showing is not made in either the January 17 memo or in any other way. Hoytuck, 285 NLRB 904 (1987), and Lutheran Social Services, supra, support my position. In Hoytuck, the Board held that the employee complaints against the su- pervisor were protected “because it is evident that . . . [the supervisor’s] conduct had an impact on employee working conditions.” The same point is made in Lutheran Social Services, supra. The employee activity against supervisors was unprotected because “employees were protesting management policies that did not directly affect them as employees.”8 In sum, the January 17 memo was unprotected because it sought the discharge of supervisor Berger. There is no showing that the effort to discharge the supervisor was prompted by supervisory conduct affecting employees’ terms and conditions of employment. The January 17 memo did not become protected by reason of the later memo of January 29. The Respondent was critical of the January 17 memo, and thus, Hasan and Borgs wrote an- other memo on January 29. As the judge correctly found, this memo was simply an after-the-fact attempt at damage control. In any event, the January 29 letter did not raise the anger of the Respondent. Indeed, the Respondent, through Loehrke, met with Hasan to discuss that memo. It was the January 17 letter that raised the anger of Respon- dent, and that letter was unprotected. Finally, although Hasan may have engaged in earlier protected activities, the judge found that they were not the cause of the discharge. Indeed as my colleagues concede, the discharge was linked to the Respondent’s anger over the January 17 memo. 7 See Lutheran Social Services, 250 NLRB 35, 41 (1980). 8 With respect to Caterpillar, 321 NLRB 1178, 1179 (1996), I do not agree with the decision in that case, and I note that the decision was vacated. EPILEPSY FOUNDATION OF NORTHEAST OHIO 685 MEMBER BRAME, dissenting in part.1 I. A. Introduction This case presents the Board with yet another opportu- nity to consider whether the right of unionized employees to have a union representative present, on request, at in- vestigatory interviews with employers should be extended to the nonunionized workplace.2 The General Counsel has requested that the Board overrule its most recent decision in this area, holding that nonunionized employees do not enjoy such a right,3 and return to a past interpretation of the Act, which would bestow this right on such unrepre- sented employees.4 My colleagues in the majority have decided to do just that. The National Labor Relations Act (the NLRA or the Act), however, does not provide for such protection for nonunionized employees, and to inter- pret it in such a way both disrupts the balance between the powers of labor and management struck by Congress in the Act and the balance struck by this Board in its long history of interpreting the Act. Finding an 8(a)(1)5 violation by the Respondent in this case for its discharge of an employee who refused to meet with his supervisors without a coworker present creates a representational right in employees who have not made the choice to be represented by a union. This decision endows nonunionized employees with a right of representation in one specific situation, although they have not elected a union to represent them in any of their other dealings with management. Such a grant of rights wreaks havoc with the scheme created by the Act, and a proper interpretation of the Act would require a finding 1 I join my colleagues in affirming the finding of 8(a)(1) violations to which no exceptions were filed, including violations based on the Respondent’s coercive interrogation of employee Arnis Borgs, its issu- ing of disciplinary warnings and threats to Borgs for his discussion of wage information with other employees, and its promulgation of a rule that prohibited employees from discussing wage information with other employees. 2 This right in the unionized setting was approved by the United States Supreme Court in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975). There, the Court defined an “investigatory interview” as an interview with the employer that the employee reasonably believes may result in his or her discipline. Id. at 256 (citing Quality Mfg. Co., 195 NLRB 197 (1972); and Mobil Oil Corp., 196 NLRB 1052 (1972)). 3 E. I. DuPont & Co., 289 NLRB 627 (1988), review denied sub nom. Slaughter v. NLRB, 876 F.2d 11 (3d Cir. 1989). 4 Materials Research Corp., 262 NLRB 1010 (1982). 5 Sec. 8(a)(1) makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” 29 U.S.C. Sec. 158(a)(1). Sec. 7 provides: Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) of this title. 29 U.S.C. Sec. 157. that such unrepresented employees are not entitled to a special right of representation in this one situation. Forc- ing a nonunionized employer to deal with an employee representative, when it is properly free to deal individually with its unrepresented employees with regard to all other terms and conditions of employment, is simply an incor- rect interpretation of the Act. The mere fact that unionized employees enjoy a Section 7 right to act in concert for mutual aid or protection by having a union representative at investigatory interviews on request does not mean that unrepresented employees enjoy the same right. As ex- plained in detail below, the scope of Section 7 rights can and does vary based on whether employees are unionized. Additionally, even if my colleagues’ approach were a permissible interpretation of the Act, it is not a reasonable one. As explained in detail below, there are very specific reasons for allowing organized employees to have a union representative present at investigatory interviews that em- ployees reasonably believe may result in discipline. Such a union representative is knowledgeable and experienced and has the ability to help both the individual employee and the employer as well as the ability to safeguard the interests of the entire bargaining unit. A mere coworker brings few if any of the same qualities to the table. Be- cause I do not think that the majority’s interpretation of the Act is a correct one or a reasonable one, I dissent from their decision to return to what I believe to be an unsound rule. My colleagues in the majority would also find that the second discharge at issue in this case violated Section 8(a)(1). I cannot agree with this decision either. The sec- ond discharge resulted from an employee’s attempt to re- move his supervisor. Such conduct, even when concerted, is not protected unless the employee is protesting activity by a supervisor that has a direct impact on the employee’s working conditions. Here, the protest at issue, a memo sent to the supervisor, referenced no supervisory conduct whatsoever, but merely asserted that the supervisor was no longer necessary. Because an attempt to remove a super- visor is not protected activity, I must dissent from my col- leagues’ determination that the Respondent violated the Act when it discharged this second employee. B. The Facts and Findings In 1993 the Epilepsy Foundation of America (EFA) se- lected the Respondent, an EFA affiliate, to conduct a 3- year project related to school-to-work transitions for teen- agers with epilepsy (the project). The respondent’s execu- tive director, Christine Loehrke, was responsible for over- seeing the project, and Respondent’s director of vocational services, Rick Berger, acted as the project’s on-site super- visor. The two employees at issue in this case are Ashra- ful Hasan, a full-time transition specialist on the project, and Arnis Borgs, an employment specialist. During 1995 and 1996 Hasan and Borgs engaged in cer- tain conduct that is at issue in this case. First, between DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 686 August and December 1995, they took part in a brown bag lunch program through which employees met approxi- mately six times during lunch hours to talk about issues that concerned them. Also, in November 1995 Borgs and Hasan initiated an ethics committee, which met twice and gave employees a chance to address problems with em- ployee relations and client-service delivery. On June 7, 1995, Supervisor Berger wrote a memoran- dum regarding an incident involving Hasan, Borgs, and an interpreter and stating that Hasan and Borgs had been given verbal warnings for their conduct in relation to that incident.6 Hasan and Borgs claim that they discussed the incident with Berger, who told them that nothing negative would be placed in their personnel files. However, Hasan later found the warning memo in his file. In response, Hasan wrote a memo to Berger with copies to Loehrke and Borgs. Berger prepared a memo in response, apparently with Loehrke’s assistance, which criticized the “insubor- dinate tone” that Hasan had employed in his memo and complained about Hasan’s having undermined Berger’s supervision of Borgs by sending Borgs a copy. With this background, Hasan and Borgs then engaged in the conduct most directly relevant to the discharges in this case. On January 17, 1996, Hasan and Borgs prepared and sent a memo to Berger, which stated that his supervision of the project was no longer required.7 They also sent a copy of the memo to Loehrke, although she was away from the office at the time. On learning that Berger and Loehrke were displeased with this January 17 memo, Hasan and Borgs, on January 29, submitted an eight-page memo to Loehrke, the stated intention of which was “to elaborate upon the reasons underlying” the January 17 memo. This January 29 memo detailed Hasan’s and Borgs’s alleged concerns about Berger. Thereafter, on February 1, 1996, Berger informed Hasan and Borgs that Loehrke wanted to meet with each of them individually with Berger present. Hasan informed Berger that they were in the midst of a meeting and could not 6 The precise details regarding this incident are not relevant to the is- sues in this case. 7 The memo stated: Mr. Jim Troxell [an EFA representative monitoring the pro- ject] and Dr. Bob Fraser [responsible for providing data process- ing and analytical services to the project] have continued to pro- vide supervisory input pertaining to service delivery and the re- search component of the study. During the past several months, Ms. Christine Loehrke has also provided input and assistance to the NIDRR [National Institute of Disability and Rehabilitation Research, responsible for the research grant] School-to-Work Pro- ject. As mentioned during earlier discussions (albeit brief) with you, both Dr. Ashraful Hasan and Mr. Arnis Borgs reiterate that your supervision of the program operations performed by them is not required. Your input to the NIDRR project in the past is appreciated. At this stage, the major area which has to be addressed—deals with outreach. Only support staff assistance is needed in this re- gard. meet with Loehrke at that time. Loehrke herself then came to Hasan and Borgs and told them that they must meet with her and Berger. When Loehrke informed Borgs that he must meet with them, he refused and said that he would meet alone with Loehrke but not with both Loehrke and Berger. Loehrke informed Borgs that he must meet with both of them together. Borgs then asked if Hasan could attend the meeting with him, but Loehrke rejected his request. When Borgs continued to refuse to meet alone with Loehrke and Berger, Loehrke told him to go home for the remainder of the day and to return the next morning. Borgs was then told to surrender his key to the office and was escorted out of the building. When he returned the next day, Borgs met with Loehrke and Jim Wilson, the Respondent’s director of administra- tion. At that time, Loehrke informed him that his refusal to meet with her and Berger the previous day was gross insubordination and that he was terminated from employ- ment. Borgs was also given a termination letter, which described his “gross insubordination” in failing to meet with Loehrke and Berger, noted that his involvement in the January 17 memo demonstrated an unwillingness to accept supervision, and explained that he had “fail[ed] to build constructive work relationships with management personnel” and had demonstrated a “resistance to ac- cept[ing] responsibility for attempting to attain articulated performance goals.” Unlike Borgs, Hasan did meet with Loehrke and Berger on February 1. At that time, Loehrke expressed her un- happiness with the January 17 memo,8 and Hasan told her that the memo was a needs assessment. Hasan also re- ceived a written warning, which stated that the January 17 memo constituted gross insubordination and that further acts of misconduct or insubordination would result in his immediate termination. Later, on March 25 Loehrke informed Hasan that he was terminated.9 Hasan received a letter signed by Loe- hrke when he returned to pick up his belongings on March 29. The letter explained that he had been terminated as a result of his conduct over the previous 9 months, specifi- cally his refusal to accept supervision on the project and his confrontations with other staff members. The General Counsel asserts that the Respondent dis- charged Borgs and Hasan because they had engaged in concerted activities and that the Respondent thereby vio- lated Section 8(a)(1) of the Act. The judge indeed found that the Respondent did in fact discharge Borgs in retalia- 8 As my colleagues note, there is some confusion in the record as to whether Loehrke expressed her displeasure with the January 17 memo or both that memo and the January 29 memo at this meeting with Hasan and Berger. 9 Although Hasan testified that he was given no reason at this time for his termination, Loehrke’s notes indicate that she did raise with him an incident that occurred earlier in March in which Hasan failed to sign performance objectives given to him by Berger. Hasan apparently did not sign off on the objectives because he wanted to add his own hand- written comments to them. EPILEPSY FOUNDATION OF NORTHEAST OHIO 687 tion for protected, concerted activities in which he had earlier engaged.10 However, the judge also found that the Respondent would have proceeded with its discharge of Borgs even in the absence of his protected activities and that, therefore, the Respondent did not violate the Act when it terminated Borgs’s employment. First, the judge found that the January 17 memo did not constitute pro- tected, concerted activity, and thus, that discipline result- ing from that memo was not a violation. Second, the judge determined that Borgs’s refusal to meet with Loe- hrke and Berger on request constituted insubordination for which he properly could be disciplined under the Act de- spite his request to have Hasan present at the meeting. Similarly, the judge determined that Hasan’s discharge did not violate the Act. First, the judge found that the General Counsel had failed to establish that the Respon- dent bore Hasan any animus based on his activities relat- ing to the brown bag lunch program, the ethics committee, or the interpreter incident. Additionally, the judge noted that these activities “were remote in time and unrelated to the events that led to [Hasan’s] discharge.” Second, the judge concluded that Hasan’s part in the January 17 memo did not constitute protected, concerted activity as argued by the General Counsel. In this regard, the judge noted that the January 17 memo did no more than attempt to dismiss Berger as Hasan’s and Borgs’s supervisor and did not raise concerns about the project or Berger’s supervi- sion thereof. Additionally, the judge refused to accept Hasan’s and Borgs’s characterization of the January 17 memo as a needs assessment and instead found that that characterization as well as the detailed January 29 memo were in fact mere “after-the-fact attempts at damage con- trol.” My colleagues find that both discharges at issue in this case violated Section 8(a)(1) of the Act. With regard to Borgs’s discharge, my colleagues determine that his re- quest to have Hasan present at the meeting with Loehrke and Berger was an exercise of his Section 7 rights11 and that the Respondent’s insistence that he meet without Hasan or be terminated, restrained, interfered with, or co- erced him in the exercise thereof, and thus, violated Sec- tion 8(a)(1). In order to reach this finding, of course, my colleagues are forced to overrule Board precedent holding that unrepresented employees do not have a right to repre- sentation by a coworker at an investigatory interview with an employer even if they have a reasonable belief that the interview will result in disciplinary action. Because I find that the Act does not provide for such a right in unrepre- sented employees, I cannot join my colleagues’ decision in this regard. 10 The activities that the judge found to be protected and concerted involved attempts by Borgs to convince the Respondent to increase the amount that it paid employees for mileage reimbursements and Borgs’s discussions with other employees regarding salaries. 11 For the full text of Sec. 7, see supra fn. 5. With respect to Hasan’s discharge, my colleagues find that the Respondent violated Section 8(a)(1) because the January 17 memo was protected, concerted activity and additionally because that memo was “inextricably inter- twined” with the January 29 memo, which clearly related to terms and conditions of employment. My colleagues therefore determine that the Respondent’s animus toward Hasan’s protected activity in writing the memos and in engaging in earlier concerted conduct with Borgs was the motivating factor behind its termination of his employ- ment. Again, I cannot join in my colleagues’ decision; I agree with the judge that the January 17 memo was not protected, concerted activity and that, therefore, Hasan’s discharge, even if resulting from his involvement in the memo, was not violative of the Act. II. A. Borgs’s Discharge 1. The Weingarten right The issue of representation during investigatory inter- views initially arose in cases involving unionized work- forces. In 1975, the United States Supreme Court, in NLRB v. J. Weingarten, Inc.,12 approved of the Board’s approach to such cases. In Weingarten, the employer had called in an employee for questioning regarding allega- tions that she had taken money.13 During the course of the questioning, the employee several times asked the man- ager to call in the union shop steward or another union representative, and the manager refused to do so.14 The Supreme Court held that previous Board decisions finding that employees have a Section 7 right “to refuse to submit without union representation to an interview which [they] reasonably fear[] may result in [their] discipline”15 set forth “a permissible construction of” Section 7’s “con- certed activities for . . . mutual aid or protection” lan- guage.16 In accepting the Board’s construction of the Act in this regard, the Court laid out “the contours and limits of the statutory right” as established by the Board in previous cases.17 The Court noted that the right of an employee to union representation on request at an investigatory inter- view “inheres in § 7’s guarantee of the right of employees to act in concert for mutual aid and protection.”18 The Court then went on to explain that this right to representa- tion would arise only when an employee actually requests representation19 and only when the employee has a reason- able belief that the investigation will result in some sort of 12 420 U.S. 251 (1975). 13 Id. at 254. 14 Id. 15 Id. at 256 (citing Quality Mfg. Co., 195 NLRB 197 (1972); and Mobil Oil Corp., 196 NLRB 1052 (1972)). 16 Id. at 260. 17 Id. at 256 (citing Quality Mfg Co., 195 NLRB 197 (1972); and Mobil Oil Corp., 196 NLRB 1052 (1972)). 18 Id. 19 Id. at 257. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 688 disciplinary action.20 The Court then explained the em- ployer safeguards that the Board had built into the repre- sentational right: First, although an employer may not force an employee to take part in an interview without his or her union representative, the employer is free to refuse to conduct the interview with a union representative pre- sent and instead proceed with the investigation without interviewing the employee at all.21 Second, the employer is not under any duty to engage in bargaining with a union representative who attends an investigatory interview.22 With these confines, previously limned by the Board, the Supreme Court accepted what has now become known as the Weingarten right of a represented employee to have present, upon request, a union representative at an investi- gatory interview with his or her employer. In the course of its opinion, the Supreme Court explained the relationship between this right and Section 7 of the Act. As the Court noted, when an employee seeks a union representative’s assistance at an investigatory interview, his or her conduct “clearly falls within the literal wording of § 7” even though the employee may be the only person with “an immediate stake in the outcome” of the interview and even though he or she is seeking “aid or protection” against the possibility of individual discipline.23 As the Court ex- plained, the union representative from whom the individ- ual employee seeks aid or protection is safeguarding not only the particular employee’s inter- est, but also the interests of the entire bargaining unit by exercising vigilance to make certain that the em- ployer does not initiate or continue a practice of im- posing punishment unjustly. The representative’s presence is an assurance to other employees in the bargaining unit that they, too, can obtain his aid and protection if called upon to attend a like interview.24 The Court went on to explain that recognizing this Weingarten right effectuates one of the NLRA’s most im- portant purposes—eliminating the “inequality of bargain- ing power between employees . . . and employers.”25 Ad- ditionally, the Court emphasized that recognizing this right at the time of an investigatory interview can benefit the 20 Id. at 257–258. 21 Id. at 258. 22 Id. at 258–260. 23 Id. at 260. 24 Id. at 260–261 (footnote omitted). See also id. at 261 fn. 6 where the Court quoted the following from a law review article: The quantum of proof that the employer considers sufficient to support disciplinary action is of concern to the entire bargaining unit. A slow accretion of custom and practice may come to con- trol the handling of disciplinary disputes. If, for example, the employer adopts a practice of considering [a] foreman’s unsub- stantiated statements sufficient to support disciplinary action, em- ployee protection against unwarranted punishment is affected. The presence of a union steward allows protection of this interest by the bargaining representative. Id. (quoting Comment, Union Presence in Disciplinary Meetings, 41 U. Chi. L. Rev. 329, 338 (1974)). 25 Id. at 261–262 (quoting 29 U.S.C. Sec. 151). employer as well as the employee, because “[a] knowl- edgeable union representative could . . . elicit[ ] favorable facts, and save the employer production time by getting to the bottom of the incident.”26 In this regard, the Court quoted favorably language noting that participation of a union representative could assist both parties by helping to clarify the situation, the facts, and any collective- bargaining agreement clause that might be in issue and by limiting the filing of grievances by encouraging discussion at this early stage.27 Finally, after reiterating that the Board’s construction of the Act was an interpretation that was “at least permissi- ble,” although perhaps not required, and that the Board had “engage[d] in the ‘difficult and delicate responsibility’ of reconciling conflicting interests of labor and manage- ment,” the Weingarten Court noted that the right at issue was “in full harmony with actual industrial practice.”28 In this regard, the Court explained that many collective- bargaining agreements already contained provisions ac- cording employees this right to representation and that “a ‘well-established current of arbitral authority’” had upheld such a right even when it was not explicitly provided for in a collective-bargaining agreement.29 2. Subsequent Developments a. Materials Research Corp. and extending the Weingarten right Since Weingarten, the Board has struggled with the is- sue of whether to extend the right approved in that case to a situation like the one in the present case in which an em- ployee in a nonunionized workplace requests representa- tion by a coworker at an investigatory interview with his or her employer. In 1982, the Board offered what ap- peared at the time to be its definitive answer to this issue. In Materials Research Corp.,30 the Board for the first time explicitly found a right to representation by a coworker at an investigatory interview in a nonunionized workplace. The Board acknowledged that the Supreme Court’s deci- sion in Weingarten had referred only to union representa- tives but determined that that was due to the particular fact pattern under consideration there and not to any desire on the part of the Court to limit the right to such a setting.31 The Materials Research majority reasoned that, because the Weingarten Court had grounded the representational right in employees’ Section 7 rights, nonunionized em- ployees should be accorded the same right as, for the most part, Section 7 protections do not vary based on whether 26 Id. at 262–263. 27 Id. at 262–263 fn. 7 (quoting Independent Lock Co., 30 Lab. Arb. 744, 746 (1958); and Caterpillar Tractor Co., 44 Lab. Arb. 647, 651 (1965)). 28 Id. at 266–267 (quoting NLRB v. Truck Drivers, 353 U.S. 87, 96 (1957) (citations omitted)). 29 Id. at 267 (quoting Chevron Chemical Co., 60 Lab. Arb. 1066, 1071 (1973)). 30 262 NLRB 1010 (1982). 31 Id. at 1012. EPILEPSY FOUNDATION OF NORTHEAST OHIO 689 one is represented by a union.32 The Board then pointed to its earlier decision in Glomac Plastics, Inc.,33 a case not clearly involving unrepresented employees34 but in which the Board nonetheless stated that “Section 7 rights are enjoyed by all employees and are in no wise dependent on union representation for their implementation.”35 The Board further noted, again, that its decision in this regard was “buttressed” by Justice Powell’s dissenting opinion in Weingarten and his statement therein that the representa- tional right would exist in a nonunionized setting as well.36 The Board then held that Weingarten “compels” a find- ing that unrepresented employees have a right to have a coworker present at an investigatory interview.37 In reach- ing this conclusion, the Materials Research majority noted specifically the following language from Weingarten: Requiring a lone employee to attend an investigatory interview which he reasonably believes may result in the imposition of discipline perpetuates the inequality the Act was designed to eliminate, and bars recourse to the safeguards the Act provided “to redress the per- ceived imbalance of economic power between labor and management.”38 The majority then went on to explain that these considera- tions come into play regardless of whether an employee is represented by a union and that unrepresented employees 32 Id. The Board also noted that in its pre-Weingarten decisions in Quality Mfg. Co., 195 NLRB 197 (1972), and Mobil Oil Corp., 196 NLRB 1052 (1972), in which the Board had recognized a right to union representation in investigatory interviews, it had also grounded the right in an employee’s right under Sec. 7 to engage in concerted activity for mutual aid or protection. Materials Research, 262 NLRB at 1013. 33 234 NLRB 1309 (1978), remanded by 592 F.2d 94 (2d Cir. 1979), supplemented by 241 NLRB 348 (1979), enfd. 600 F.2d 3 (2d Cir. 1979). 34 The situation at issue in Glomac Plastics fell somewhere between Weingarten and the circumstances of the present case. In Glomac Plastics, the employer refused an employee’s request to have present at an investigatory interview a union negotiating committee member and disciplined the employee for refusing to take part in the interview with- out this representative. Id. at 1309. The situation was different from that of Weingarten, and yet was not the equivalent of the situation in Materials Research and the present case, because there was merely some controversy as to whether the workplace employees were in fact represented by a union. As the Glomac Plastics Board explained, the employer had refused to bargain in good faith with the union and had thereby deprived its employees of the benefits of union representation. Id. at 1310. Thus, although the employees in Glomac Plastics were not unrepresented to the extent of those in Materials Research or the pre- sent case, they were not enjoying the full benefits of the representative that they had chosen. Because of this circumstance, the Glomac Plas- tics Board did employ certain language in its decision that apparently relates to the situation of nonunionized employees; the Materials Re- search majority, thus, drew on this language in making its argument that nonunionized employees should enjoy a right equivalent to the Weingarten right of unionized employees. 35 Id. (quoting Glomac Plastics, 234 NLRB at 1311). 36 Id. (citing Glomac Plastics, 234 NLRB at 1311, and quoting Weingarten, 420 U.S. at 270, fn.1 (Powell, J., dissenting)). 37 Id. at 1014. 38 Weingarten, 420 U.S. at 262 (quoting American Ship Building Co. v. NLRB, 380 U.S. 300, 316 (1965)), quoted in Materials Research, 262 NLRB at 1014. may have an even greater need for support during an in- vestigatory interview.39 The majority explained that un- represented employees are without the safeguards of a collective-bargaining agreement, which checks an em- ployer’s ability to act in an unjust or arbitrary way, and without the protections afforded by a grievance-arbitration procedure.40 According to the Materials Research major- ity, therefore, unrepresented employees should be able to look to coworkers for assistance during an investigatory interview in order to counteract this imbalance of power between employers and unrepresented employees.41 Chairman Van de Water and Member Hunter both filed vigorous dissenting opinions in Materials Research. In his dissent, Chairman Van de Water pointed out initially that employers are not statutorily obligated to recognize a rep- resentative of their employees unless that representative had been recognized by the employer or certified by the Board and that, without a recognized or certified union, employers are free to deal with employees individually.42 Conversely, when a union has been recognized or certi- fied, an employer, under Section 9(a) of the Act, is re- quired to deal with the union rather than with individual employees on matters related to terms and conditions of employment.43 As Chairman Van de Water explained, previous cases, dealing with the right of unionized em- ployees to representation at investigatory interviews, had recognized that an employer’s refusal to allow an em- ployee’s request for a representative at such an interview frustrates the employee’s right not to deal individually with the employer when the collective-bargaining relation- ship requires the employer to deal with the employee’s representative.44 Chairman Van de Water then noted that the Supreme Court’s decision in Weingarten was also cen- 39 Materials Research, 262 NLRB at 1014 (citing Glomac Plastics, 234 NLRB at 1311). For an explanation of how Chairman Van de Water, in dissent, refuted the majority’s use of this Supreme Court language, see infra note 45. 40 Id. 41 Id. 42 Id. at 1016 (citing Linden Lumber Division v. NLRB, 419 U.S. 301 (1974); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937); and J. I. Case Co. v. NLRB, 321 U.S. 332 (1944)). 43 Id. at 1016–1017. As Chairman Van de Water explained, once unit employees have designated a bargaining representative and that representative has been recognized or certified, the employer is obli- gated under Sec. 9(a) to deal with the union as its employees’ exclusive representative. Id. Under Sec. 8(d), the employer must “confer [with the union] in good faith with respect to wages, hours, and other terms and conditions of employment.” Id. at 1017 (quoting 29 U.S.C. Sec. 158(d)). Additionally, it is an unfair labor practice under Sec. 8(a)(5) for the employer to refuse to deal with the union about these Sec. 8(d) matters. Id. In fact, once such an exclusive representative has been recognized or certified, the employer cannot deal individually with its employees but must instead, under Secs. 8(a)(5), 8(d), and 9(a), deal with them collectively through their union with regard to their terms and conditions of employment. Id. 44 Id. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 690 tered on the existence of a collective-bargaining relation- ship.45 Chairman Van de Water went on to explain the reper- cussions that would result from finding a right to represen- tation by a coworker at an investigatory interview. As Chairman Van de Water noted, the Supreme Court had described the role of a union representative in such a situa- tion as someone who could “make proposals and sugges- tions to the employer concerning such things as alternative discipline and other possible avenues of investigation,” and the Board had previously found that employers had to allow such representatives “to play an active role in the discussions.”46 According to the Chairman, this prescribed role of a Weingarten representative “is strikingly similar to the role of a labor organization in its dealings with an em- ployer.”47 Chairman Van de Water felt that, by extending this role to a nonunionized employee’s coworker, the Ma- terials Research majority had succeeded in creating a hy- brid relationship whose existence is justified solely by Section 7’s call for employee mutual aid and protection. It is a relationship of potential cost and limitations for the 45 Id. at 1018 (quoting Weingarten, 420 U.S. at 261–262). At this point in his dissent, Chairman Van de Water also criticized the major- ity’s attempt to equate the situations of represented and unrepresented employees by asserting that concerns expressed by the Weingarten Court with regard to represented employees applied equally or with even more force to unrepresented employees. As explained supra, the Materials Research majority quoted language from Weingarten ex- pressing the Supreme Court’s concern that denying represented em- ployees a right to have union representation at investigatory interviews would “perpetuate[ ] the inequality the Act was designed to eliminate” and would “bar[ ] recourse to the safeguards the Act provided ‘to re- dress the perceived imbalance of economic power between labor and management.’” Weingarten, 420 U.S. at 262 (quoting American Ship Building Co. v. NLRB, 380 U.S. 300, 316 (1965)), quoted in Materials Research, 262 NLRB at 1014. As explained, the Materials Research majority insisted that these same concerns supported extending the Weingarten right to unrepresented employees. 262 NLRB at 1014. Chairman Van de Water, however, explained that the purpose of the Act was not to improve employees’ positions through any means possi- ble but instead was to give employees the ability to improve their own positions through the selection of a collective-bargaining representa- tive: My colleagues rely on this language from the Weingarten decision, asserting that the presence of a fellow employee at an investigatory in- terview serves to enhance employees’ economic power vis-à-vis their employer. While they may be correct that their decision does improve the employees’ position in the balance of power, the simple fact re- mains that Congress has declared that the means by which employees are to redress such economic imbalance is utilization of the Act’s processes for majority selection of an exclusive collective-bargaining representative. No doubt, this Board could construct a myriad of rules which would enhance the position of employees. To do so, however, it would have to ignore the mandate of Congress as well as the Su- preme Court’s admonition that “the Act’s provisions are not indefi- nitely elastic, content-free forms to be shaped in whatever manner the Board might think best conforms to the proper balance of bargaining power.” Id. at 1018 fn. 37 (quoting American Ship Building Co. v. NLRB, 380 U.S. at 310. 46 Id. at 1019 (citing Southwestern Bell Telephone Co., 251 NLRB 612 (1980)). 47 Id. employer which exists without reference to other applica- ble provisions of the Act; one that exercises its powers without being subjected, in any way, to the responsibilities imposed on other entities that exercise such powers; and it is a relationship to which the employer must render defer- ence without being provided the normal safeguards which would otherwise be available.48 Chairman Van de Water next discussed how the Mate- rials Research majority’s application of the Weingarten right to a nonunionized setting altered the employer- employee relationship with regard to a single aspect of terms and conditions of employment, thereby requiring employers to deal differently with employees for purposes of investigatory interviews as compared to all other terms and conditions. In this regard, the Chairman explained that such things as discussions about changes in pay scales, safety matters, and hours of work all would relate to an employee’s terms and conditions and could have an even greater negative impact on an individual employee than could some forms of discipline. Yet, as the Chairman explained, the Materials Research majority certainly would not require an employer, who wished to speak with an individual employee about such a matter, to allow that employee’s request to have a coworker present or forego the discussion altogether.49 Finally, Chairman Van de Water went on to explain why Section 7’s “mutual aid or protection” language by no means compels the Material Research majority’s result. Employees’ Section 7 rights are affected by whether or not they have selected an exclusive representative. For exam- ple, when employees have selected a representative, they are no longer free to deal with their employer on an indi- vidual basis, and the union is free to waive some employee rights.50 On the other hand, once they have opted for a union’s representation, employees gain the right to bargain collectively with their employer and to insist that any agreement that is reached be put in writing and signed.51 Thus, endowing only represented employees with the Weingarten right to representation under Section 7 would 48 Id. 49 Id. 50 Id. at 1020. In support of his assertion that the scope of Sec. 7 rights is affected by whether employees are represented, specifically in that unions may permissibly waive certain Sec. 7 rights, Chairman Van de Water pointed explicitly to the fact that when a union becomes the exclu- sive representative of a unit of employees, it is permitted to waive those employees’ right to strike. Id. See Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 705 (1983) (“This Court long had recognized that a union may waive a member’s statutorily protected rights, including ‘his right to strike during the contract term, and his right to refuse to cross a picket line.”) (quoting NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 180 (1967)); and Plumbers & Pipefitters Local 520 v. NLRB, 955 F.2d 744, 751 (D.C. Cir. 1992) (“[M]any of the rights guaranteed to employees by the NLRA may be altered or waived by a union in collective bargaining, so long as the union fulfills its duty of fair representation and takes no action that would impair the employees’ choice of their bargaining repre- sentative.”) (citing Metropolitan Edison, 460 U.S. at 705–707). 51 Id. EPILEPSY FOUNDATION OF NORTHEAST OHIO 691 not be anathema to other applications of Section 7. Fur- thermore, as Chairman Van de Water explained, the mere fact that employee conduct is an attempt to obtain mutual aid or protection does not mean that an employer must accede to the request.52 To prove his point, the Chairman considered application of the Materials Research major- ity’s reasoning in a situation other than the Weingarten scenario. As he explained, employees in a nonunionized workplace could come together and agree to ask the em- ployer to submit workplace changes to an employee ma- jority vote.53 This conduct would clearly be in pursuit of mutual aid or protection against the possibility of “arbi- trary or onerous employer actions,” and an employer would not be able to discipline the employees for merely making the request.54 However, the employer would not violate the Act by refusing the request and proceeding with the implementation of workplace changes in its usual manner.55 Chairman Van de Water then explained that the Weingarten situation in a nonunionized workplace should be treated in the same way, i.e., “employees who request the presence of a fellow employee at an investigatory in- terview are seeking mutual aid and protection and an em- ployer would violate the Act by punishing an employee for seeking that protection.”56 However, according to Chair- man Van de Water, nothing in the Act would require the employer to accommodate the employee’s request or forego the interview.57 As previously noted, Member Hunter also dissented from the Materials Research majority’s determination that unrepresented employees enjoy a Weingarten right to rep- resentation. Member Hunter first noted, along the same lines as Chairman Van de Water, that the Weingarten de- cision itself was grounded in the collective-bargaining relationship and in the Court’s concern for the bargaining representative’s right to protect not only the interests of the individual employee but the interests of the entire unit, a concern not present in the nonunionized setting.58 Member Hunter next turned to the “practical reasons” for refusing to extend Weingarten to the nonunionized setting. Mem- ber Hunter explained that, while the Supreme Court in Weingarten had focused on “the important role a knowl- edgeable union representative could play in assisting the employer by eliciting favorable facts and the like,” the same could not be said in the nonunionized setting. In- stead, the employer in the nonunion situation is likely to find itself confronted by a “representative” who has few or 52 Id. (citing Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50 (1975) for the proposition that “not all con- certed actions for mutual aid and protection are protected by our Act”). 53 Id. 54 Id. 55 Id. 56 Id. (emphasis in original). 57 Id. at 1020–1021. 58 Id. at 1021. even an absence of the skills or responsibilities that one would expect from a union steward. It must therefore deal with a person who has no experience in dealing with these situations and who, out of probable friendship for the interviewee, may be involved emo- tionally in the interview.59 Despite these two vigorous dissents, the Materials Re- search majority won the day and established a right in unrepresented employees to representation by a coworker at investigatory interviews. As explained below, however, the right was not long-lived. b. Limiting the Weingarten Right Just 3 years after its decision in Materials Research, the Board overruled that case and found that unrepresented employees do not enjoy a Weingarten right to representa- tion. In Sears, Roebuck & Co.,60 the Board “fully en- dorse[d] former Chairman Van de Water’s dissenting opinion” in Materials Research.61 The Sears Board ex- plained that the Weingarten right is clearly appropriate in a unionized setting because, in such a workplace, the union has been “vested with the exclusive authority to represent unit employees and deal with the employer on all matters involving terms and conditions of employment, including . . . discipline.”62 Thus, when a unionized employer seeks to do something that will affect an employee’s terms or conditions, it is not free to deal individually with the em- ployee when that employee objects.63 The situation is different, however, when the workforce is not unionized; in such a situation, “an employer is entirely free to deal with its employees on an individual, group, or wholesale basis” with regard to all terms and conditions, including discipline.64 According to the Sears Board, the Materials Research decision required nonunionized employers to deal collectively with their employees, a result that “fun- damentally alters our statutory scheme” and “wreaks havoc with fundamental provisions of the Act.”65 The Sears Board then went on to reject the reasoning employed in Materials Research. In Sears, the Board ex- plained that reliance on Weingarten’s basis in Section 7 was misplaced because “[t]he scope of Section 7’s protec- tions may vary depending on whether employees are rep- resented or unrepresented.”66 Additionally, the Sears 59 Id. at 1021. 60 274 NLRB 230 (1985). 61 Id. 62 Id. at 230–231 (emphasis in original). 63 Id. at 231. 64 Id. (citing Linden Lumber v. NLRB, 419 U.S. 301 (1974); J. I. Case Co. v. NLRB, 321 U.S. 332 (1944); and NLRB v. Jones & Laugh- lin, 301 U.S. 1 (1937)). 65 Id. 66 Id. Here, the Sears Board, like Chairman Van de Water in his Ma- terials Research dissent, relied on Emporium Capwell in which union- ized employees picketed in an attempt to force their employer to deal with them rather than their union. Id. (citing Emporium Capwell, 420 U.S. 50 (1974)). The Supreme Court held that the discharges that re- sulted were lawful because “the employees’ actions contravened the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 692 Board rejected the Materials Research Board’s reliance on the fact that a Weingarten representative “is not cloaked with full collective-bargaining authority.”67 Although the Sears Board acknowledged that this was an accurate statement of the limitation placed on a Weingarten repre- sentative, it explained that “the representative acts as a representative for the employee being interviewed and all other employees in the unit.”68 This fact, in addition to the Board’s previous holding that Weingarten representatives must be allowed to speak and be free to make proposals or offer alternatives, constituted “‘dealing with’ the em- ployer, and ‘dealing with’ an employer is a primary in- dicium of labor organization status as well as a traditional union function.”69 It would run “contrary to the Act’s exclusivity principle” to force a nonunionized employer “to recognize and deal with the equivalent of a union rep- resentative.”70 Member Hunter filed a separate concurring opinion in Sears because he felt that the Act does not compel the Sears decision; rather, according to Member Hunter, ex- tending Weingarten rights to nonunionized employees would be “a permissible but not a reasonable construction of the Act.”71 Member Hunter then went on to explain why, in his opinion, overturning Materials Research was the most reasonable approach. First, he pointed out that Materials Research, by equating the Section 7 rights of unionized and nonunionized employees, gave “representa- tion to employees who have not chosen to be represented,” despite the fact that employees’ Section 7 rights can vary depending on whether they are represented by an exclu- at 99 ). exclusivity provisions of Section 9.” Id. The employees’ actions, which were concerted, would have been protected under Sec. 7 if they had not been represented by a union, but “their rights in a unionized setting could not ‘be pursued at the expense of the orderly collective- bargaining process contemplated by the NLRA.’” Id. (quoting Empo- rium Capwell, 420 U.S. at 69). According to the Sears Board, the same reasoning is applicable to the Weingarten question in a nonunionized setting: “The scope of Section 7’s protections may vary depending on whether employees are represented or unrepresented, and the Section 7 rights of one group cannot be mechanically transplanted to the other group at the expense of important statutory policies.” Id. 67 Id. 68 Id. (emphasis in original). 69 Id. at 232 (citing Materials Research, 262 NLRB at 1016 fn. 30, 1019 fn. 40, and accompanying text (Chairman Van de Water, dissent- ing)). The Board has more recently reaffirmed the notion that “dealing with” is one of the primary factors indicative of labor-organization status. See Polaroid Corp., 329 NLRB 424 (1999); and Electromation, Inc., 309 NLRB 990, 994–995 (1992), enfd. 35 F.3d 1148 (7th Cir. 1994). Forcing an employer to meet with an employee representative as well as the employee whose behavior is at issue and endowing that representative with the right to speak and make proposals treads very close to the line of forcing an employer to deal with a “labor organiza- tion” that has not been certified or recognized as the exclusive representative of the unit employees. See Polaroid, 329 NLRB No. 47 slip op. at 2 (“The Board has explained that ‘dealing with’ contem- plated ‘a bilateral mechanism involving proposals from the employee committee . . . , coupled with real or apparent consideration of those proposals by management.’”) (quoting Electromation, 309 NLRB 5 fn. 21 70 Id. 71 Id. sive bargaining agent.72 Member Hunter went on to decry the Materials Research majority’s “denigration” of “the knowledge, skill, and experience which the union repre- sentative typically brings to the investigatory interview” as well as its failure to take notice of the fact that a union representative is “charged with the concerns of the unit as a whole.”73 Member Hunter then went into some detail about how these differences in the unionized and nonun- ionized settings could affect the efficacy and role of a Weingarten representative: In the represented setting, the employer regularly deals with the union representative on matters besides the investigatory interview. There is more likelihood that the employer then will permit greater participa- tion from the union representative at the investigatory interview because the employer knows that he may face the union representative again on this matter in a postdiscipline grievance or on other related matters. In addition, with the union representative, there is more impetus on the employer to make consistent dis- ciplinary decisions because the union representative manifests an apparent solidarity of the employees in the unit. The presence of the union representative also has a beneficial effect for employers in that his presence may discourage frivolous grievances and re- duce the costs of nonfrivolous grievances. . . . [I]n the unrepresented setting, there is an unlimited pool of potential witnesses at these interviews since the em- ployee can choose any coworker he likes. This unlimited pool can hinder continuity and speedy in- vestigations which the employer seeks.74 Because of these differences in the two settings, Member Hunter concurred in the Sears majority’s decision to over- turn Materials Research, despite his understanding that neither result was compelled by the Act or by Weingarten. Three years after Sears was decided, Member Hunter’s approach basically became the majority approach to the Weingarten question in the nonunionized setting. In E. I. DuPont & Co.,75 the Board reconsidered Sears after a re- 72 Id. at 233–234. 73 Id. at 234. 74 Id. 75 289 NLRB 627 (1988), review denied sub nom. Slaughter v. NLRB, 876 F.2d 11 (3d Cir. 1989). The procedural history of this case is somewhat complicated. Initially, the Board affirmed the judge’s determination that the employer had violated the Act by discharging an employee for refusing to take part in an investigatory interview without a coworker present. 262 NLRB 1028 (1982). The Third Circuit en- forced the Board’s decision. 724 F.2d 1061 (3d Cir. 1983). The Re- spondent then filed motions for panel rehearing and rehearing en banc, and the Board requested that the court vacate its decision and remand to the Board for further consideration. The court then granted panel re- hearing, vacated its opinion, 724 F.2d 1061 (3d Cir. 1984), and re- manded to the Board, 733 F.2d 296 (3d Cir. 1984). The Board pro- ceeded to issue a supplemental decision in which it reversed the judge and found, based on Sears, that the employer had not violated the Act. 274 NLRB 1104 (1985). Finally, the Third Circuit remanded the case EPILEPSY FOUNDATION OF NORTHEAST OHIO 693 mand from the Third Circuit in which the court held that “the Board erroneously assumed that the Act mandated its interpretation” and directed the Board to consider whether “it would be a permissible interpretation of the Act to con- clude that unrepresented employees are not entitled to the presence of a coemployee during an investigatory inter- view.”76 In DuPont, the Board proceeded to overrule that part of Sears that held that the Act compelled the finding that unrepresented employees do not enjoy a Weingarten right to representation by a coworker at an investigatory interview.77 Rather, the DuPont Board held that, although the Materials Research decision might have been a per- missible interpretation of the Act,78 the proper balance between labor and management’s conflicting interests is “better served” by not extending the Weingarten right to the nonunionized workplace.79 The Board considered the factors that supported the dif- ferent balance struck in Weingarten itself and how these factors fared in the nonunionized workplace. While the Weingarten Court had emphasized the fact that a union representative could safeguard the interests of the entire bargaining unit in addition to those of the individual em- ployee, the Board explained that there is no such guarantee in the nonunionized workplace.80 Similarly, a coworker would be less likely than a union representative to be able to keep an employer from engaging in unjust conduct, because there would not be a collective-bargaining agree- ment to define misconduct and how to ameliorate it and because the coworker probably would not have access to information about how other employees had been treated under similar circumstances.81 The DuPont Board then went on to explain that a Weingarten representative in a nonunionized setting would also be less helpful to an em- ployer than would a union representative. While a union representative may assist the employer by helping to elicit facts and to speed things along, such assistance from a fellow employee would be less likely, because such a fel- low employee would probably have no experience with such interviews and might be emotionally involved in the outcome due to his or her relationship with the inter- viewee.82 Similarly, the likelihood of “heading off formal grievances,” a factor weighing in favor of the presence of a union representative, would not come into play in a non- unionized workplace where no collective-bargaining agreement would provide for formal grievance proce- dures.83 because it determined that the Board should not have assumed that the Act mandated the Sears interpretation. 794 F.2d 120 (3d Cir. 1986). 76 289 NLRB at 627 (emphasis added). 77 Id. at 628. 78 Id. 79 Id. at 630. 80 Id. at 629. 81 Id. 82 Id. at 629–630 (quoting Materials Research, 262 NLRB at 1021 (Member Hunter, dissenting)). 83 Id. at 630. The DuPont Board then proceeded to consider the situa- tion that would arise if an employer decided, as is its pre- rogative under Weingarten, that, rather than have a repre- sentative present, it would prefer to forego the interview altogether. In a unionized workplace, although the em- ployee would lose the opportunity to explain the incident at issue, if discipline resulted, the employee would still be able to avail himself or herself of whatever grievance pro- cedures had been provided through the collective- bargaining process.84 An employee in a nonunionized workplace, however, would have no such safeguard. Thus, as the Board explained: To the extent that recognition of a nonunion Weingar- ten right induces employees to insist on a condition that may in turn induce employers simply to cancel investigatory interviews (unless the employee waives his Weingarten right), there is a serious question whether extending the right to nonunion employees may not work as much to their disadvantage as to their advantage.85 In light of all of these factors, the DuPont Board deter- mined that it would “best effectuate the purposes of the Act” by endowing only unionized employees with the right to a Weingarten representative on request.86 The Board did note that it was not implying that a nonunion employee does not have a right to make a request for rep- resentation at an investigatory interview.87 3. Should Weingarten now be re-extended? With this background, the issue of Weingarten represen- tation in nonunionized workplaces has arisen again, and today, my colleagues in the majority decided once again to move away from Sears and DuPont and back to Materials Research and find that the Respondent in this case has violated Section 8(a)(1) by discharging Borgs for refusing to meet with Loehrke and Berger in the absence of his coworker Hasan. I, however, would find that the Respon- dent has not violated the Act, because nonunionized em- ployees do not enjoy a Weingarten right to representation by a coworker. Furthermore, I would return to Sears and find that this conclusion is compelled by the Act. As explained in detail above and in both Chairman Van de Water’s dissenting opinion in Materials Research88 and the Sears opinion,89 a nonunionized employer is under no duty to recognize an employee representative until it has achieved recognitional status satisfactory to the employer or has been certified by the Board.90 Prior to this recogni- 84 Id. 85 Id. 86 Id. at 631. 87 Id. at 630 fn. 15. 88 262 NLRB at 1016–1019. 89 274 NLRB at 230–231. 90 Once a majority of employees in an appropriate unit has properly selected a representative, an employer becomes obligated to bargain with that representative instead of with individual employees. For example, Sec. 9(a) of the Act provides: DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 694 tion or certification, a nonunionized employer may deal on an individual basis with its employees with regard to all terms and conditions of employment. By finding that nonunionized employees have a Weingarten right to repre- sentation during investigatory interviews, my colleagues carve out an area in which they force nonunionized em- ployers to deal collectively with employees, a result that is completely at odds with the intent and structure of the Act. My colleagues’ reliance on the applicability of Section 7 rights to nonunionized as well as unionized employees is misplaced. As explained above, the scope of Section 7 rights can and does vary depending on whether employees have a recognized or certified exclusive bargaining repre- sentative. Here, nonunionized employees would clearly have the right to request that a coworker attend an investi- gatory interview,91 but their employers just as clearly are permitted to deny that request. Any other result creates a situation in which nonunionized employers, who have no duty to bargain or deal with an employee representative with regard to any other terms and conditions of employ- ment, are burdened with this duty in one particular situa- tion, that of investigatory interviews that may result in discipline.92 My colleagues offer no explanation as to why Representatives designated or selected for the purposes of col- lective bargaining by the majority of the employees in a unit ap- propriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employ- ment, or other conditions of employment: Provided, That any in- dividual employee or a group of employees shall have the right at any time to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract or agreement then in effect: Provided further, That the bargaining representative has been given opportunity to be present at such adjustment. 29 U.S.C. Sec. 159(a) (emphasis added). Additionally, Sec. 8(a)(5) makes it an unfair labor practice for an employer “to refuse to bargain collectively with the representative of his employees, subject to the provisions of Section 9(a).” 29 U.S.C. Sec. 158(a)(5). 91 As explained above, Chairman Van de Water also alluded to an employee’s right to request representation. He noted that employees can engage in conduct that is an attempt to obtain mutual aid or protec- tion, such as requesting a Weingarten representative, and that employ- ers cannot discipline them for making such a request. Materials Re- search, 262 NLRB at 1020. He went on, however, to explain that the mere fact that an employee attempts to obtain mutual aid or protection does not mean that an employer is required to accede to the employee’s request. Id. See also supra text accompanying notes 52–55. 92 Although my colleagues characterize my argument as stating that extending the Weingarten right to the instant situation forces an em- ployer to deal with the equivalent of a labor organization, I do not find that coworker-representatives are necessarily the equivalent of a labor organization. What my colleagues decide in this case, however, treads very close to the line of forcing employers to “deal with” the equivalent of a “labor organization” that has not been certified or recognized, as explained supra note 69. My colleagues’ decision places this burden on nonunionized employers in one particularized situation and no other. It is no answer to argue, as my colleagues do, “that an employer is com- pletely free to forego the investigatory interview,” and thus, has no obligation to deal with the employee’s coworker-representative. The fact of the matter is that if the employer wants to get to the bottom of a this one situation should be treated any differently from a myriad of other situations in which an individual nonun- ionized employee may request the presence of a coworker at a meeting with the employer that is related to any term or condition of employment. Do nonunionized employees then have a right to insist on such representation when their employer wishes to discuss compensation or work hours with them individually? To so hold would obvi- ously alter the structure of our Act and our long-standing interpretation of it.93 It makes no more sense to carve out this term or condition of employment and endow nonun- ionized employees with a right to representation in the particularized situation of investigatory interviews.94 Although I think that it is clear that the Act compels a finding that nonunionized employees are not entitled to a Weingarten right, I think that it is equally clear that, even situation with an employee by questioning that employee, something that it would be perfectly free to do with regard to any other term or condition of employment, it does have an obligation to deal with that employee’s coworker-representative. In this regard, the nonunionized employer has entirely the same obligation as a unionized employer, even though its employees have not chosen to be represented by a collective-bargaining representative. 93 My colleagues, like the Materials Research majority, assert that unrepresented employees need the assistance and support of a fellow employee in the investigatory-interview situation. This assertion, how- ever, is driven neither by the statute nor by its legislative history. My colleagues are treating a presumed need as a statutory mandate. Our job, however, is to administer the Act that Congress passed, and noth- ing in that statute nor the legislative history justifies creating this one exception to our usual treatment of unorganized employees in the exer- cise of their Sec. 7 rights. My colleagues’ approach treats the Act as infinitely elastic without any statutory authorization. 94 In response to the question why nonunionized employees should be entitled to a coworker-representative at investigatory interviews but not at other meetings with their employers, my colleagues state that the principles put forward by the Supreme Court in Weingarten “speak only to this specific right” and that, therefore, other circumstances are not “encompassed within the Weingarten rationale” and are not before the Board today. This argument does not even begin to answer the question posed, however. Of course these other nonunionized-workplace situa- tions are not “encompassed within the Weingarten rationale”; Weingar- ten’s rationale relates exclusively to union representation at investigatory interviews—unionized employees clearly already have a right to be represented with regard to changes in other terms and conditions of employment. Additionally, although these other situations involving meetings be- tween nonunionized employers and employees are not explicitly raised in this particular case, to the extent that these other situations demon- strate the difficulties with extending the Weingarten right to the nonun- ionized setting, they are before the Board today. My colleagues avoid the issue because there is no logical reason for extending nonunionized employees a representational right in the investigatory-interview situa- tion and no other. However, if my colleagues were to acknowledge this fact, they would have to find that nonunionized employees have a right to at least this limited Weingarten-type representation at any meeting with an employer in which terms and conditions of employment may be affected, despite the fact that they are not represented by a certified or recognized union. In fact, logically extended, my colleagues’ reasoning would result in a greatly reduced need for employees to avail them- selves of the Act’s processes relating to certification of a bargaining representative, because they would already have the right to at least limited representation in virtually every situation in which terms and conditions of employment may be affected. EPILEPSY FOUNDATION OF NORTHEAST OHIO 695 if this result were not compelled, it is the better approach because it more properly balances the interests of labor and management. First, as Member Hunter noted in his dissenting opinion in Materials Research95 and as ex- plained by the Board in DuPont,96 a coworker- representative does not bring the same level of assistance to an investigatory interview as does a union representa- tive. As explained above, a union representative serves the interests of both employee and employer at an inves- tigatory interview by eliciting facts and helping to avoid the filing of frivolous grievances. A coworker represen- tative, however, is less likely to have experience with such interviews and, as Member Hunter has noted, may be emotionally involved.97 My colleagues in the major- ity respond to these concerns by asserting that they are “wholly speculative.” It seems more speculative, how- ever, to assume that a lone individual, selected on the spur of the moment, will advance the interests of the unit. By contrast, an experienced union representative who is familiar with the lore of the shop floor and who regularly deals with the employer in a variety of matters, including the processing of grievances, is likely to be of more as- sistance to both employer and employee at a Weingarten interview than is a coworker who may never have even attended such an interview or had any dealings with the employer beyond that of an employee. In fact, in the nonunionized setting, an employee is apparently free to choose any coworker as a representative, including someone who is personally involved in the matter under investigation, a result that certainly could lead to “repre- sentatives” who are not only hostile to the employer but extremely unlikely to be of any assistance to the em- ployer in objectively getting to the bottom of the incident at issue.98 Another practical reason for refusing to extend the Weingarten right to the nonunionized setting relates to a separate point raised by the Supreme Court in Weingarten. As explained previously, the Court emphasized the fact that having a union representative present during an inves- tigatory interview could help to safeguard the interests of the bargaining unit generally. There is no similar guaran- tee in the nonunionized workplace. A coworker, chosen as a representative by an employee for his or her own per- sonal reasons, may or may not have the interests of the rest of the workforce in mind. A coworker-representative cer- tainly would not have the same kinds of incentives to look out for these wider interests that a union representative 95 262 NLRB at 1021. 96 289 NLRB at 628–630. 97 262 NLRB at 1021. 98 It should be noted here that the present case is just such a situa- tion. The person whom Borgs requested as his coworker-representative was Hasan, Borgs’ partner in writing the January 17 memo about which Loehrke and Berger wished to meet with Borgs. Thus, Hasan would have been unlikely to be of assistance to the employer in any way at Borgs’ interview as he had a direct interest in defending himself as well as Borgs. would. My colleagues in the majority again dismiss this concern as “wholly speculative.” However, the fact that a given coworker-representative might act in the interests of the workforce as a whole does not overcome the very real concern that the likelihood of safeguarding the interests of an entire unit of employees is much more likely to occur in the unionized setting than the nonunionized setting.99 Because the factors that weighed in favor of Weingarten representation in the unionized setting are absent or at least drastically reduced in importance in the nonunionized set- ting, I would find that a proper balance of labor and man- agement interests should not result in imposing the burden of Weingarten representation on employers in the nonun- ionized setting. Nonunionized employers should not be burdened with a duty either to accede to an employee’s request for a coworker-representative or to forego an in- vestigatory interview when neither the employee nor the employer is significantly assisted by the presence of such a representative. Moreover, as explained above, I would find that the NLRA itself forbids this result, a result that places a duty to recognize a representative in a specific, limited, and apparently arbitrary situation on an employer that is otherwise free to deal with employees individually. Because the result reached by the majority in this case runs 99 As explained, my colleagues assert that all of these concerns re- garding a coworker-representative’s inability to provide the same types of assistance as a union representative are mere speculation. They focus specifically on my concern that a coworker-representative will be of less assistance to the employer, but as I have explained, it is at least as likely that a coworker-representative will be less helpful to employ- ees. One of the reasons that the Weingarten Court held that an em- ployee’s ability to have a union representative present at investigatory interviews was protected even though the employee at issue would be seeking aid or protection against individual discipline was that a union representative safeguards the interests of the entire bargaining unit. A union representative performs this function by making certain that the employer does not engage in a practice of imposing discipline unjustly and by his or her very presence at the interview, which assures other unit employees that he or she will provide the same aid or protection to them if it should become necessary. Weingarten, 420 U.S. at 260–261. There just is not the same type of assurance with a nonunion coworker- representative. To understand this fact, one must only consider the present case. Here, Hasan, the potential coworker-representative, took part with Borgs in the very activity under investigation. He thus had a vested interest and would have wanted to protect his own interests as well as Borgs’. It is unlikely that he would have been concerned with the possibility that the employer would apply similar discipline in some future situation, and it is even more unlikely that his presence at the interview, as Borgs’s friend and compatriot in the behavior under in- vestigation, would have sent a message to other employees that he would be there for them if the need arose. It is also important to point out here that my colleagues’ discounting of these factors under the guise of speculation, relating to the benefits of union representatives at investigatory interviews, flies in the face of Weingarten itself. In that case, the Supreme Court emphasized the importance of these very benefits. They were an important part of the factors that went into balancing the conflicting interests of labor and management, a balancing that in Weingarten supported the finding that unionized employees are entitled to the presence of a union representa- tive at investigatory interviews. Here, these same factors weigh against finding a similar right in nonunionized employees. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 696 counter to the Act and does not properly balance the inter- ests of labor and management, I must dissent. B. Hasan’s Discharge As explained above, the Respondent issued a written warning to Hasan for his part in the January 17 memo, which had stated that Berger’s supervision of the project was no longer necessary. The warning explained that Hasan would be terminated if he engaged in any further misconduct or insubordination. Thereafter, the Respon- dent terminated Hasan and later provided him with a letter stating that he had been terminated because of his conduct over the previous 9 months, specifically his refusal to ac- cept supervision and his confrontations with staff mem- bers. The judge determined that the Respondent did not violate the Act when it warned and then discharged Hasan, because the January 17 memo was not protected activity. Nonetheless, my colleagues in the majority have decided that the Respondent did in fact violate Section 8(a)(1) based on their finding that the January 17 memo was in fact protected, concerted activity that was “inextricably intertwined” with the January 29 memo. According to my colleagues, the Respondent was motivated in its discharge of Hasan by its animus toward his protected activity relat- ing to the memos and his earlier concerted conduct with Borgs. I, however, would adopt the judge’s finding that the January 17 memo was not concerted, protected activity and that, therefore, the Respondent did not violate the Act when it discharged Hasan. My colleagues in the majority find that, even if the sole purpose of the January 17 memo was to remove Berger as supervisor of the project, Hasan’s conduct in preparing and submitting the memo was protected because Berger’s conduct as a supervisor affected Hasan’s working condi- tions. Additionally, they find that this January 17 memo was “inextricably intertwined” with the January 29 memo, which laid out Hasan’s and Borgs’s perceived problems with Berger’s supervision. In this regard, my colleagues state that, because Loehrke and Berger had read both of the memos prior to their meeting with Hasan and their attempted meeting with Borgs on February 1, they “fully understood that the issues raised in the January 17 memo were not separate from the concerns about how they were being treated by their supervisor as set forth in the subse- quent memo.” Based on this finding, which is in direct contrast to the judge’s finding that the second memo was a mere “after-the-fact attempt at damage control,” my col- leagues determine that the January 17 memo was a clear attempt to raise issues related to Hasan’s and Borgs’s em- ployment conditions and that therefore the reprimand that Hasan received for his part in writing and submitting the memo violated Section 8(a)(1). Additionally, according to my colleagues, Hasan’s discharge was violative of Section 8(a)(1) because the Respondent put Hasan “on the verge of termination” for taking part in the memo-writing, activity that my colleagues find to be protected, and then cited his conduct over the last 9 months, during which time Hasan did engage in some protected, concerted activity, in its termination letter. My colleagues assert that these two things demonstrate that the Respondent’s animus toward Hasan’s protected activity was the motivating factor be- hind his discharge. Clearing away the smoke, the issues surrounding Hasan’s discharge are determined by whether his conduct relating to the January 17 memo was protected.100 The judge found that it was not, and my colleagues reject that determination. Under established law, employees are free to engage in concerted activities for mutual aid or protec- tion in the absence of a union or collective-bargaining activity; however, concerted activity with the limited pur- pose of protesting the hiring, discharge, or continued em- ployment of a supervisor101 or of “affect[ing] the ultimate direction and managerial polices of the business” is not protected.102 There is, of course, an exception to this rule, and it is that exception that my colleagues in the majority use to find that the January 17 memo was, in fact, pro- tected activity. This exception applies to concerted activ- ity that protests the selection or termination of a supervisor who directly impacts on the employees’ working condi- tions.103 My colleagues in the majority find that “Berger’s supervisory duties had a significant impact on Hasan’s terms [and] conditions of employment” and that, therefore, Hasan’s part in the January 17 memo was protected activ- ity. I would find that Hasan’s conduct with regard to the January 17 memo was not protected, because that memo explicitly called for Berger’s removal as supervisor of the project and did not protest any actions that Berger had taken that affected Hasan’s terms and conditions of em- ployment. An examination of some of the cases that have found protected activity when employees have protested 100 Hasan’s conduct in this regard was clearly “concerted” as he and Borgs wrote and submitted the January 17 memo together. 101 See, e.g., Atlantic-Pacific Construction Co. v. NLRB, 52 F.3d 260, 262 (9th Cir. 1995); NLRB v. Ford Radio & Mica Corp., 258 F.2d 457, 463 (2d Cir. 1958); Joanna Cotton Mills Co. v. NLRB, 176 F.2d 749, 753 (4th Cir. 1949); and Hoytuck Corp., 285 NLRB 904 fn. 3 (1987). 102 Lutheran Social Service of Minnesota, 250 NLRB 35, 41 (1980). 103 See, e.g., Atlantic-Pacific Construction, 52 F.3d at 262 (“[W]here the purpose of the concerted activity is not related to working condi- tions, as where personal animus motivates employee protest over the selection of a manager, the protest is not protected.”) (citations omit- ted); NLRB v. Oakes Machine Corp., 897 F.2d 84, 89 (2d Cir. 1990) (“In a narrow category of cases . . . concerted activity to protest the discharge of a supervisor or to effect the discharge or replacement of a supervisor may be ‘protected,’ provided the identity of the supervisor is directly related to terms and conditions of employment.”) (citations omitted); Caterpillar, Inc., 321 NLRB 1178, 1179–1180 (1996); Hoy- tuck Corp., 285 NLRB at 904 fn. 3; Fair Mercantile Co., 271 NLRB 1159, 1162 (1984), enfd. mem. 767 F.2d 930 (8th Cir. 1985), supple- mented by 277 NLRB 1321 (1985); and Lutheran Social Service, 250 NLRB at 41 (“[P]rotests against the appointment or termination of ‘low-level’ supervisors may be protected when directly related to the employees’ conditions of employment.”) (citations omitted). EPILEPSY FOUNDATION OF NORTHEAST OHIO 697 the employment of a supervisor demonstrate that the pre- sent case does not meet this exception. In Dreis & Krump Mfg. Co. v. NLRB,104 for example, the union brought a formal grievance on behalf of an em- ployee, charging a supervisor with “negligence in oversee- ing safety and production.”105 During the grievance proc- ess, the employee distributed copies of the grievance and a statement about the matter to fellow employees.106 He was thereafter discharged.107 The Board found that the em- ployer had violated the Act, and the Seventh Circuit up- held that determination. In so doing, the court distin- guished the situation in which an employee protest of a supervisor is based on animus toward that supervisor and therefore is not protected.108 As the court explained, the employee in Dreis & Krump, through circulation of the grievance and statement, was warning fellow employees about “supervisory deficiencies which potentially affect on-the-job safety and performance” and was therefore furthering a purpose of mutual aid or protection.109 Thus, in Dreis & Krump, the employee activity focused on spe- cific problems with the supervisor and articulated those problems within the protest materials themselves. Similarly, in NLRB v. Oakes Machine Corp.,110 the Sec- ond Circuit upheld the Board’s determination that em- ployee protests of a supervisor were protected and that the discharges that resulted violated the Act. In that case, an employee sent a letter to his employer’s parent company, complaining about the conduct of the employer’s president and was terminated as a result.111 The court first noted that “[e]mployee action seeking to influence the identity of management hierarchy is normally unprotected activ- ity,”112 but then went on to determine that, in the circum- stances of that case, the letter-writing was protected. The letter contained several paragraphs complaining of the company president’s “diversion of company resources and personnel away from potentially profitable company pro- 104 544 F.2d 320 (7th Cir. 1976). 105 Id. at 323. 106 Id. at 324. The attached statement read, “ATTENTION ALL WORKERS This case of J. Mayer [employee] v. J. Mirabella [supervi- sor] concerns ALL workers. We must not think that Mirabella is just peculiar. The Company knows what Mirabella does and supports him and all other foremen who act like him. WE DON’T HAVE TO TAKE IT!!!” Id. 107 Id. 108 Id. at 327–328 (explicitly distinguishing the situation at issue in Joanna Cotton Mills v. NLRB, 176 F.2d 749 (4th Cir. 1949), in which an employee was discharged for circulating a petition calling for a supervisor’s termination after “the supervisor had disciplined the em- ployee for operating gambling devices and being overly attentive to female employees during working hours”). 109 Id. at 328. 110 897 F.2d 84 (2d Cir. 1990). 111 Id. at 86–87. Normally, employees “have no interest in the iden- tity of high level management”; however, in this case, the company president could be considered much like a supervisor because he had “direct contact with employees, and his activities paralleled those of a low level supervisor at least to the extent that he made some job as- signments.” Id. at 90. 112 Id. at 89. jects, in order to advance [his] own personal projects.”113 The court found a direct relation to terms and conditions of employment in this protest because “although the letter did not specifically state[ ] that [the president’s] diversion of personnel and resources to personal projects had reduced employees’ salaries, that inference was permissible, if indeed, not compelled.”114 This was so because it was known that employee raises and bonuses were tied to company profitability, that employees had not received an annual raise because the company had not been profitable, and that employees had blamed the time they were re- quired to spend on the president’s personal projects for the unprofitable year.115 Thus, the letter to the parent com- pany was clearly in protest of supervisor activities that affected employees’ terms and conditions of employment. Finally, Caterpillar, Inc.,116 cited by my colleagues in the majority, provides yet another example of the required connection between the protest of a supervisor and the effect that that supervisor’s activities have on employees’ terms and conditions. There, the Board initially found that the employee protest was not actually an attempt to re- move the chief executive officer,117 but then went on to consider the effect that such a finding would have on its decision.118 In Caterpillar, the employees had displayed the slogan “Permanently Replace Fites,” Fites being the chief executive officer who had decided to replace perma- nently striking employees at other Caterpillar plants.119 The Board found that the decision permanently to replace employees, conduct that was clearly referenced in the em- ployees’ chosen form of protest, “had an immediate and direct effect on the employees’ ‘lot as employees,’” thereby making their protest protected activity.120 Again, however, Caterpillar involved activity on the part of em- ployees that clearly referenced the actions by management that were under protest and that affected the employees’ terms and conditions of employment. In the instant case, the January 17 memo referenced no conduct by Berger. It merely stated that his supervision was no longer necessary.121 There is absolutely nothing in the memo indicating that Hasan and Borgs were protesting any conduct on the part of Berger that had any effect on their working conditions. Thus, I would find that the January 17 memo was merely an attempt to remove Ber- ger as their supervisor and was therefore unprotected by the Act. My colleagues in the majority assert that the January 29 memo establishes that the January 17 memo was actually directed at supervisor conduct with a direct impact on 113 Id. 114 Id. 115 Id. 116 321 NLRB 1178 (1996). 117 Id. at 1178. 118 Id. at 1179. 119 Id. 120 Id. at 1180. 121 For the full text of the January 17 memo, see supra note 7. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 698 working conditions, even if the January 17 memo itself did not directly cite such conduct. In this regard, my col- leagues are apparently at least impliedly rejecting the judge’s finding that the January 29 memo was merely an attempt at after-the-fact damage control and not a sincere expression of concern about Berger’s conduct as a super- visor. As I would accept the finding of the judge, who was able to observe the witnesses at the hearing and reach a conclusion based on all of the evidence and testimony, I disagree with my colleagues that the January 29 memo can somehow “save” the January 17 memo. As explained, the January 17 memo references absolutely no conduct on the part of Berger that would affect employee working condi- tions but rather merely calls for his removal as supervisor. The fact that Hasan and Borgs, after learning that Berger and Loehrke were angered by the January 17 memo, then drafted a second memo, in which they listed alleged prob- lems with Berger’s supervision, cannot mean that the ini- tial memo is suddenly endowed with new meaning. In- deed, it is more a tacit recognition of the unprotected na- ture of the January 17 memo and an after-the-fact attempt to cover the clear omission from the January 17 memo.122 It is true that, in assessing whether employee protests of supervisors are aimed at conduct affecting terms and con- dition, the Board should consider all of the surrounding circumstances.123 Here, however, the judge made a clear finding that the January 29 memo was a mere after-the- fact attempt to justify Borgs’s and Hasan’s earlier behav- ior. There is no other evidence that Borgs and Hasan had raised these concerns about Berger prior to the January 17 memo. The January 29 memo, coming as it did after the initial employee conduct and apparently in response to 122 My colleagues assert that, in accepting the judge’s finding that the January 29 memo was merely an after-the-fact attempt at damage control, I contend, “at least implicitly[,] that the January 17 memo must have related to something other than supervisory conduct affecting employees.” As explained, my contention is that the January 17 memo did nothing more than call for Berger’s removal as supervisor without protesting any specific actions on Berger’s part. As the cases discussed supra demonstrate, absent some indication that the call for removal of a supervisor is in response to some specific activity on the part of that supervisor that affected employees’ terms and conditions of employ- ment, the Board should not find that such an unexplained call for a change in management is protected activity. My colleagues also aver that the fact that the Respondent did not take action against Hasan until after it received the January 29 memo “reasonably suggests that the Respondent understood that both memos related to supervisory conduct affecting the employees.” To the extent that this speculation is even relevant, it should also be noted that Hasan and Borgs wrote the January 29 memo after learning that Berger and Loehrke were displeased with the January 17 memo and that the Re- spondent’s disciplinary memos to Hasan and Borgs referenced the January 17 memo. These additional facts can just as “reasonably sug- gest” that the Respondent viewed the two memos as separate: the Janu- ary 17 memo calling for the removal of a supervisor with no supporting reason and the January 29 memo merely attempting to divert the nega- tive attention engendered by the January 17 memo. 123 See, e.g., Oakes Machine, 897 F.2d at 89 (“Whether employee activity aimed at replacing a supervisor is directly related to terms and conditions of employment is a factual inquiry, based on the totality of the circumstances.”). employer reaction to that conduct, cannot alone bring the January 17 memo into the realm of protected activity. Because the January 17 memo references absolutely no supervisor conduct having a direct impact on employee terms and conditions of employment and because there is no evidence of conduct on the part of Borgs and Hasan contemporaneous with that memo that would suggest that the memo itself was aimed at specific supervisor conduct with an impact on terms and conditions, I would find that it is unprotected as a mere attempt to remove a supervisor. Therefore, I would find that Hasan’s discharge was lawful. III. In summary, I would find that the Respondent employer has not violated the Act as a result of its discharge of Borgs or Hasan. Under current law, a nonunionized em- ployee has no right to a Weingarten-type representative at an investigatory interview with his or her employer. I believe that this approach is correct. My colleagues’ deci- sion to return to the Materials Research approach and en- dow unrepresented employees with such a right is contrary to the NLRA, which does not required nonunionized em- ployers to “deal with” unrecognized and uncertified em- ployee representatives. Additionally, even if this approach were cognizable under the Act, it does not result in a rea- sonable balance of the competing interests of labor and management. Whereas a union representative in an inves- tigatory interview can be of assistance to the individual employee, the employer, and the unit as a whole, a co- worker-representative is unlikely to be of much assistance to anyone, and thus burdening nonunionized employers with a requirement to allow such representation or forego investigatory interviews does not strike a fair balance. I therefore dissent from my colleagues’ finding that the Re- spondent’s discharge of Borgs violated the Act. Similarly, I would find that the Respondent’s discharge of Hasan was not in violation of the Act. His part in the January 17 memo was not protected activity because that memo did nothing more than call for the removal of a su- pervisor without citing a single incident of supervisory conduct that affected his terms or conditions of employ- ment. Such activity is unprotected. The January 29 memo should not alter this finding as the judge specifically found that it was nothing more than an after-the-fact attempt at damage control. I therefore dissent from my colleagues’ finding of a violation with regard to Hasan’s discharge as well. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. EPILEPSY FOUNDATION OF NORTHEAST OHIO 699 WE WILL NOT coercively interrogate you concerning your concerted protected activities. WE WILL NOT issue disciplinary warnings to you for disclosing or discussing your wages with other employees. WE WILL NOT threaten you with reprisals for disclos- ing or discussing your wages with other employees. WE WILL NOT maintain a rule prohibiting you from disclosing or discussing your wages with other employees. WE WILL NOT issue disciplinary warnings to you for engaging in protected concerted activities. WE WILL NOT discharge you for engaging in pro- tected concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL rescind our policy prohibiting you from dis- cussing your wages with other employees. WE WILL, within 14 days from the date of the Board’s Order, offer Arnis Borgs and Ashraful Hasan full rein- statement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or any other rights or privileges pre- viously enjoyed. WE WILL make Arnis Borgs and Ashraful Hasan whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus interest. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful warnings and discharges of Arnis Borgs and Ashraful Hasan, and WE WILL, within 3 days thereafter, notify each of them in writing that this has been done and that the warnings and discharges will not be used against them in any way. EPILEPSY FOUNDATION OF NORTHEAST OHIO Paul C. Lund, Esq., for the General Counsel. Steven Moss, Esq., and Morlee A. Rothchild, Esq., for the Re- spondent. Cynthia Lowencamp, Esq., of Cleveland, Ohio, and Neil Myers, Esq., of Euclid, Ohio, for the Charging Parties. DECISION STATEMENT OF THE CASE RICHARD A. SCULLY, Administrative Law Judge. On charges filed on April 10, 1996,1 by Arnis Borgs and on May 13, 1996, by Ashraful Hasan, the Regional Director, Region 8, Na- tional Labor Relations Board, issued a consolidated complaint on November 14, 1996, alleging that Epilepsy Foundation of North- east Ohio (the Respondent), had committed certain violations of Section 8(a)(1) of the National Labor Relations Act, as amended. The Respondent filed a timely answer denying that it had com- mitted any violation of the Act. A hearing was held in Cleveland, Ohio, on April 15 through 17, 1997, at which all parties were given a full opportunity to 1 Amended charges were filed by Borgs on June 21 and 27, 1996. examine and cross-examine witnesses and to present other evi- dence and argument. Briefs submitted on behalf of the General Counsel and the Respondent have been given due consideration. On the entire record, and from my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT I. JURISDICTION At all times material, the Respondent was a not-for-profit cor- poration engaged in the prevention and control of epilepsy at its facility located in Cleveland, Ohio. Annually, in the course and conduct of its business operations, the Respondent receives funds and contributions in excess of $500,000 of which over $50,000 is received directly from points located outside the State of Ohio. The Respondent has admitted the foregoing facts but in its an- swer and at the hearing denied that it is subject to the Board’s jurisdiction because it is a nonprofit charitable social service organization. It did not discuss this issue in its brief and has of- fered no other reasons why it would not be subject to the Board’s jurisdiction. The Board has long held that the only basis for de- clining jurisdiction over a charitable organization is a finding that its activities do not have a sufficient impact on interstate com- merce to warrant the exercise of its jurisdiction. St. Aloysius Home, 224 NLRB 1344, 1345 (1976). Here, the Respondent’s annual revenues far exceed the discretionary jurisdictional stan- dards applicable to health care institutions and social service organizations. See Hispanic Federation for Social Development, 284 NLRB 500 (1987). Moreover, as the Board has pointed out, employees of a nonprofit charitable organization have the same Section 7 rights to engage in protected concerted activities as do employees of commercial enterprises and are entitled to the re- medial measures which may be required to remedy unlawful interference with such rights. United Services for the Handi- capped, 251 NLRB 823, 825 (1980). Accordingly, I find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and is subject to the jurisdiction of the Board. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Respondent provides services to persons affected by epi- lepsy throughout Northeast Ohio. It is an affiliate of the Epilepsy Foundation of America (EFA) and participates in EFA sponsored programs. In 1993 the National Institute of Disability and Reha- bilitation Research (NIDRR) awarded EFA a grant to conduct a research project involving school-to-work transition for teenagers with epilepsy. The Respondent submitted a proposal and was selected by EFA to conduct a 3-year demonstration project in which teenagers with epilepsy were recruited to participate in a vocational program, involving classroom and work experience with employers in the community, to prepare them for the transi- tion from school to work. The Respondent was responsible for hiring, supervising and evaluating the staff needed to conduct the NIDRR project. The on-site immediate supervisor of the project, which commenced in October 1993, was Julie Johnson until she left in March 1994 and was replaced by the Respondent’s direc- tor of vocational services, Rick Berger. Christine Loehrke, the Respondent’s current executive director has had responsibility for overseeing the project from the outset. The project was also to be monitored by Jim Troxell, an EFA representative, and was to receive data processing and analytical services from Dr. Bob Fraser, a representative of the University of Washington. The DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 700 project included a full-time position for a transition specialist and Dr. Ashraful Hasan was hired by the Respondent to fill that posi- tion. Arnis Borgs was hired by the Respondent in June 1994 as a part time job coach and later became a full time employment specialist, a position that involved placing clients with epilepsy in jobs and assisting them in performing the jobs. In early 1995 he began working on the NIDRR project and his time was divided equally between his regular placement activities and duties re- lated to the project. B. Allegations Concerning Wage Information The complaint alleges that on or about December 28, 1995, Arnis Borgs was unlawfully interrogated and threatened with unspecified reprisals for discussing employees’ wages; that on that date the Respondent promulgated a rule unlawfully prohibit- ing employees from discussing wages; that, on January 3, 1996, he was given a written reprimand for obtaining and disclosing salary information; and that, on or about January 9 he was given another reprimand for insubordination because he had failed to return the warning notice he was previously given. Borgs testified that in the late fall of 1995 he had discussions with other employees, including Tom Darkness and John Novak, concerning their wages. His annual evaluation was approaching and he asked other employees how much they were making and how raises were calculated. Some employees shared wage infor- mation with him and some did not. On December 28 he was called to a meeting with Berger and Loehrke. Just prior to that meeting, Berger told Borgs that Loehrke was “really angry” at Borgs because of his involvement in getting the employees’ mileage reimbursement increased, discussed below, but also said that if Borgs repeated it to anyone he would deny having said so. At the meeting, Loehrke asked if Borgs had been discussing salaries with other employees, why he did so, and where he had gotten such information. Borgs responded that he was curious as to what other employees were making and that he had gotten the information directly from the employees. Loehrke told him that it was against the Respondent’s policy to disclose salary informa- tion and Borgs said that he had not disclosed it but merely dis- cussed it in casual conversations. Berger accused him of having a list of salaries that he was showing around, which Borgs denied. They continued to ask him why he wanted such information and where he had gotten it. Near the end of the meeting, Berger told him that he was being given “a warning” not to discuss salaries again. Loehrke said there was a policy against salary disclosure, that he should not be getting or disclosing such information, and that if he did it again he would be reprimanded. On January 3, 1996, Berger gave him a written warning notice for unauthorized access to and dissemination of confidential salary information. Berger told him he could sign or not sign the notice as he chose, but that it had to be resumed. Borgs took the notice and, when Berger asked about it, he said he wanted to discuss it with some- one outside the agency and would return it on January 10. On that date, when Borgs resumed the first warning notice to Berger with his comments on it, he was given another warning notice. That notice reiterated that he was being warned for acquiring and shar- ing confidential salary information as well as for being “insubor- dinate” and having “confiscated” agency property by reason of his failure to return the first warning notice. Christine Loehrke testified that salaries of the Respondent’s staff are confidential and that only she, the Director of Admini- stration Jim Wilson, and the bookkeeper have access to them. Payroll information is kept in a locked file cabinet to which only the same three people have access. She testified that the Respon- dent has an unwritten policy that unauthorized access to or dis- semination of confidential information is unacceptable. In late November 1995 she was informed by Berger that Borgs had shared with employee Jeff Schoenberger a list of employee sala- ries and was provided with a memo dated November 28, 1995, from Schoenberger about the incident. Berger also told her about a conversation he allegedly had with Borgs and Hasan in which they indicated they had information concerning the salaries of several staff members, including Berger, Wilson, and Carol Doubler, a supervisor in the employment department. Berger asked how they acquired the information and they said that “they had their ways.” After receiving this information from Berger, she asked the people he had mentioned if they had voluntarily disclosed salary information to Borgs and was told that they had not. On December 28, 1995, she and Berger met with Borgs. She told Borgs that she had learned that he had a list of salaries. Borgs denied having a list and said that what salary information he had was given to him voluntarily. She informed him of the Respondent’s policy conceding confidential information, that he was being given a verbal warning and that any similar acts would be dealt with “in a harsher way.” On the following day she pre- pared a warning notice and gave it to Berger to give to Borgs. After Berger told her that Borgs had taken the warning notice to show it to someone and had not resumed it, he was given a writ- ten notice that it had to be resumed by January 9, 1996. When Borgs did not return the warning notice on January 9, after being told to do so several times, she prepared another warning for insubordination. Analysis and Conclusions The Board has held that, in the absence of a business justifica- tion for it, a rule requiring that employee salaries be kept confi- dential and not be disclosed to other employees constitutes a clear restraint on the employees’ Section 7 right to engage in concerted activities for mutual aid and protection concerning an undeniably significant term of employment. E.g., Leather Center, Inc., 312 NLRB 521, 527 (1992); Heck’s, Inc., 293 NLRB 1111, 1119 (1989). The Respondent contends that Borgs was not inter- rogated about or disciplined for discussing salary information with other employees who voluntarily disclosed such informa- tion, but for the unauthorized acquisition and disclosure of salary information concerning supervisory employees who had not disclosed it to him. The warning notice, dated December 28, 1995, prepared by Loehrke, states: “He [Borgs] was told that agency policy holds salary info. confidential and that unauthorized access to this info., and/or unauthorized release of this info., is unacceptable.” A similar statement appears in the warning notice, dated January 9, 1996.2 There is no evidence that this “unwritten policy” had actu- ally been promulgated previously or that the Respondent had any business justification for such a policy. The finding of a violation for prohibiting disclosure of salary information “is not premised on mandatory phrasing, subjective impact, or even evidence of enforcement, but rather on the reasonable tendency of such a prohibition to coerce employees in the exercise of fundamental rights protected by the Act.” Radisson Plaza Minneapolis, 307 NLRB 94 (1992). The clear import of the Respondent’s policy is that obtaining or disclosing any salary information is prohibited, 2 These statements are consistent with Borgs’ credible testimony as to what he was told by Loehrke about the confidentiality of salary information on December 28, 1995. EPILEPSY FOUNDATION OF NORTHEAST OHIO 701 not just that which concerns supervisory personnel or is con- tained in confidential files, and that even voluntary disclosure of an employee’s own salary would violate the policy. If the Re- spondent intended the prohibition to apply only to accessing salary information concerning supervisors or that which is physi- cally contained in confidential files, it could have said so. Its blanket prohibition against obtaining or disclosing any salary information, in the absence of any business justification for such a rule, was overly broad and could reasonably be expected to stifle any discussion of salary information. See Service Merchan- dise Co., 299 NLRB 1125, 1126 (1990). I find that the Respon- dent’s promulgation of this rule on December 28, 1995, violated Section 8(a)(1). I also find that the interrogation of Borgs and the warnings is- sued to him for discussing salary information were unlawful. As noted, Section 7 protects employees’ rights to discuss salary information. On December 28, 1995, Borgs was called in to a meeting with Berger, one of his supervisors, and Loehrke, the Respondent’s highest ranking official, and quizzed about pro- tected activity, viz., discussing salary information. Immediately prior to the meeting, Berger informed him that Loehrke was “really angry” over Borgs’ having engaged in other, unrelated protected activity, his campaign to get the mileage reimburse- ment increased. At the meeting, he was questioned about whether he had discussed salary information with other employees, why he did so, and where he had gotten such information. Borgs ad- mitted discussing salary information with other employees who had disclosed such information to him, but denied the accusation that he had a list of salaries. He was told that he had violated a policy against obtaining and disclosing salary information, that he was being given a warning for the violation, and that any simi- lar activity would be dealt with in a harsher manner. In evaluating whether an interrogation concerning an employee’s protected activity was coercive, all of the surrounding circumstances must be considered. Rossmore House, 269 NLRB 1176, 1177 (1985). I find that this interrogation of Borgs, which concerned an accu- sation that he had violated an unlawful policy against discussing salary information and was accompanied by a warning and threat of additional, harsher disciplinary action, had a reasonable ten- dency to restrain, coerce, and interfere with protected rights and violated Section 8(a)(1). Super One Foods, 294 NLRB 462, 464 (1989). The clear language in the disciplinary warning notices issued to Borgs establishes that he was being disciplined for violating the Respondent’s overly broad policy prohibiting obtaining and disclosing salary information. Since the policy was unlawful, disciplinary action based on a violation of that policy would, likewise, violate the Act. Elston Electronics Corp., 292 NLRB 510, 511 (1989). However, the Respondent contends that the real reason for the warnings to Borgs was that it had a reasonable belief that he had improperly obtained confidential salary infor- mation concerning supervisory employees who had not voluntar- ily shared such information with him. There no credible evidence to establish this. There is substantial evidence to the contrary, not the least of which is the failure to mention such a reason in either of the warning notices. Moreover, the evidence shows that, while Loehrke made the decision to take disciplinary action against Borgs, she had little, if any, personal knowledge concerning the alleged salary disclosures by Borgs and her actions were based entirely on information purportedly provided by Berger. Berger was not called as a witness by the Respondent and its failure to do so has not been explained. There is no evidence that Berger was unavailable at the time of the hearing or that he was not fa- vorably disposed toward the Respondent. This creates the infer- ence, which I draw, that Berger’s testimony would not have sup- ported the Respondent’s position. See International Business Machines, 285 NLRB 1122, 1123 (1987). I also find that Loe- hrke’s testimony about this matter cannot be credited. She stated that she first learned about the matter in November 1995 from Berger, who told her that Borgs had shown a list of salaries to Schoenberger and that in another incident Borgs and Hasan had told Berger that they had information about the salaries of super- visors. However, a memo, dated November 28, 1995, written by Berger, refers only to Schoenberger’s report about Borgs’ show- ing him a list of salaries and makes no mention of the alleged incident involving Borgs and Hasan. l find the fact that there is no mention of that incident in the memo, that no action was taken against Hasan (who credibly denied the incident ever happened) with respect to having obtained salary information, and that Ber- ger did not testify establishes that the incident never happened. The record also contains a memo from Schoenberger to Berger in which he reported that Borgs showed him a list of salaries, com- plained about an unfair agency pay scale, and said that raises were not given to employees who deserved them but just to friends of Loehrke. The memo indicates that this had occurred on March 31, 1995, nearly 8 months before. That memo also con- tains a handwritten note by Loehrke, dated January 29, 1996, in which she states that, in talking with Schoenberger, she had “dis- covered” that the list was “verbal” and there was no written document. This suggests that she had not talked to Schoenberger about the matter before disciplining Borgs as she had implied during her testimony. Finally, there is no credible evidence to support Loehrke’s al- leged belief that Borgs had improperly obtained confidential information concerning any supervisor’s salary. Borgs has con- sistently maintained, when questioned by Loehrke and in credible testimony at the hearing, that whatever salary information he had was voluntarily disclosed to him by other employees. As dis- cussed above, I do not credit Loehrke’s testimony that Berger told her about Borgs and Hasan having information concerning the salaries of Berger, Wilson and Doubler. The only other evi- dence is Berger’s memo to Loehrke about what Schoenberger had allegedly told him. That memo states: “I asked Jeff [Schoen- berger] if I was on the list. I was, and the amount was not close.” It follows that even if what Schoenberger said was true, since the amount was “not close” to being correct, there was no basis to conclude that Borgs had obtained such information from the Respondent’s confidential files. I find that the Respondent issued the warnings to Borgs because he had violated its unlawful policy prohibiting the discussion of wages by employees and not be- cause he had improperly obtained or disclosed confidential in- formation concerning the salaries of supervisors. Since these warnings violated Section 8(a)(1), the additional basis for the second warning, Borgs’ alleged insubordination and confiscation of agency property by not promptly resuming the first warning notice, was also unlawful. C. Discharges of Borgs and Hasan The complaint alleges that the Respondent unlawfully dis- charged Arnis Borgs and that it unlawfully reprimanded and discharged Ashrafal Hasan because they had engaged in con- certed activities protected by the Act. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 702 1. Alleged concerted activity The evidence shows that during 1995 Borgs had been engaged in trying to get the Respondent to increase the amount it reim- bursed employees for mileage when they used their personal vehicles for work. The Respondent’s employee handbook pro- vides that employees who are required to use their personal automobiles for business will be reimbursed at “the IRS ap- proved rate for mileage.” The IRS approved rate was 29 cents and employees were only receiving 25-cents per mile. He credi- bly testified without contradiction that, beginning in January and February, he had discussed the reimbursement issue with other employees in the employment department where he worked and later with employees in the social services department. Several indicated they approved of his raising the issue with the Em- ployer. He described one such conversation, in which employee John Novak said that it would be great if Borgs got an increase for everyone, but that he did not want to be involved because he feared repercussions. In one of his communications to Loehrke about the issue, Borgs stated that at least five other employees had expressed their concern about it. Borgs testified that he raised the reimbursement issue with the Respondent’s bookkeeper and that on June 12, 1995, the book- keeper issued a memorandum stating that from then on mileage would be reimbursed at the rate of 29-cents per mile. A short time later that same day, Berger read the memo and went around and told all employees that the memo had been rescinded. In July, Borgs went to Loehrke to ask about increasing the mileage reimbursement and followed up with a memo, dated September 30. He subsequently prepared and submitted a bill, dated No- vember 15, 1995, for $135.60, representing the difference be- tween the amount he was paid for mileage during 1995 and what he claimed was due him under the 29-cent-per-mile rate. Loehrke responded with a note, dated November 20, stating that the 25- cent-per-mile rate would be in effect until further notice. Borgs sent her another memo, dated November 22, pointing out that the handbook called for reimbursement at the IRS approved rate and asking for an explanation as to why the policy in the handbook was not being followed. He sent another memo, dated December 11, 1995, to Loehrke asking for clarification of the reimburse- ment policy. Loehrke resumed the memo with a handwritten note on it saying that she had already discussed the matter with him “2 times.” On December 19, 1995, Loehrke issued a memo stating that mileage reimbursement would be made at 29 cents per mile, retroactive to January 1, 1995. Between August and December 1995 Borgs and Hasan en- gaged in a “Brown Bag Lunch” program in which employees got together about a half dozen times during their lunch hours to discuss matters of mutual concern. Borgs testified that around the time the program began both Loehrke and Berger indicated that they disapproved of the meetings and that Berger told one of the secretaries that she could not attend. Hasan testified that Berger was critical of the program and questioned why the meetings were being held which prompted him to invite Berger to attend. In November 1995 Borgs and Hasan started an “Ethics Commit- tee” which held two meetings in which employees were given the opportunity to address problems concerning employee relations and delivery of services to clients. Hasan testified that Berger told him that Loehrke questioned the purpose of the committee and felt that its title implied that “there is something unethical going on.” Minutes of the meetings were posted in the office. They also distributed a questionnaire to the employees asking for their opinions about work related matters, including, “leadership vision” and “supervisory integrity.” There is evidence that one of the clients involved in the NIDRR project had multiple disabilities requiring the use of an interpreter and that Hasan and Borgs had hired an interpreter without following the agency’s subcontracting procedure. Hasan testified that Berger refused to pay the invoices he submitted for the interpreter’s services and he had to pay her himself to prevent the disruption of services to the client. Carol Doubler testified that, at the direction of Berger, she contacted the interpreter and requested that she appear for an interview and to complete the required paperwork. The interpreter told her that she was upset about statements that Hasan and Borgs had made that indicated she was being used in a “political battle” they were fighting at the agency and that she did not wish to have any further contact with either of them. Doubler told Hasan what the interpreter had said, but a week later the interpreter called to say that Hasan had con- tacted her again and that she was extremely upset over it. The record contains a memo Berger wrote, dated June 7, 1995, about the incident which states that Hasan and Borgs were given verbal warnings for their actions. The memo was apparently placed in their personnel files. Hasan and Borgs both testified that they had discussed the interpreter incident with Berger and that after they clarified what had happened, Berger told them that he had mis- understood the facts concerning the incident and that nothing derogatory or negative would be put in their personnel files. Hasan subsequently reviewed his personnel file and discovered the warning memo Berger had placed there. Thereafter, he wrote a memo to Berger, dated, October 5, 1995, in which he referred to their previous conversation, complained about Berger’s plac- ing the warnings in their files and demanded an explanation. Hasan sent copies of this memo to both Loehrke and Borgs. Ber- ger responded with a memo dated October 13, 1995, which criti- cized the “insubordinate tone” of Hasan’s memo and accused him of undermining Berger’s supervision of Borgs by sending a copy of it to him. Loehrke testified that she considered Hasan’s memo threatening, hostile and disrespectful, that she felt Hasan “had crossed the line,” that “strong action had to be taken,” and that she assisted Berger in preparing his response. She said that she considered Hasan’s memo insubordinate and that by sending a copy to Borgs, who had no need to be involved, it might also encourage him to be insubordinate. Loehrke had no personal knowledge of the interpreter incident and did not talk to Hasan about his memo. Berger did not testify. Consequently, I find no reason to doubt the uncontradicted tes- timony of Hasan and Borgs that Berger told them there would be nothing adverse placed in their files as a result of the incident. When Hasan discovered that Berger had, in fact, issued warnings to both him and Borgs, based on that incident, his efforts to ques- tion and dispute the warnings constituted concerted activity on his part. There is nothing in the memo that is so outrageous, egregious or disruptive as to lose the protection of the Act. E.g., Martin Marietta Corp., 293 NLRB 719, 725 (1989); YMCA of Pikes Peak Region, 291 NLRB 998 (1988). 2. Events leading to the discharges On January 17, 1996,3 Hasan and Borgs prepared and submit- ted a memo to Berger concerning the NIDRR project which stated: 3 Hereinafter, all dates are in 1996. EPILEPSY FOUNDATION OF NORTHEAST OHIO 703 Mr. Jim Troxell and Dr. Bob Fraser have continued to provide supervisory input pertaining to service delivery and the research component of the study. During the past several months, Ms. Christine Loehrke has also provided input and assistance to the NIDRR School-to Work Project. As mentioned during earlier discussions (albeit brief) with you, both Dr. Ashraful Hasan and Mr. Arnis Borgs re- iterate that your supervision of the program operations per- formed by them is not required. Your input to the NIDRR project in the past is appreci- ated. At this stage, the major area which has to be addressed deals with outreach. Only support staff assistance is needed in this regard. A copy of the memo was sent to Loehrke who was away from the office at the time. Hasan and Borgs testified that they had encountered problems with Berger failing to carry out tasks relating to out reach for the project. The memo was intended as a needs assessment for the project, which Hasan described as “top heavy” with supervision while what was really needed was more secretarial help. When they reamed that both Berger and Loehrke were very unhappy about the memo, they submitted another eight-page memo, dated January 29, with the stated intention of elaborating on the reasons underlying the previous memo, detailing the problems they felt were undermining and endangering the project, and suggesting solutions. On February 1 Berger came to Hasan and Borgs and told them that Loehrke wanted each of them to meet individually with her and Berger. Hasan informed Berger that they were involved in a meeting and could not meet with them at that moment. A short time later, Loehrke came in and informed them that they had to meet. Loehrke told Borgs that she needed him to meet with her and Berger. Borgs testified that he declined because he felt in- timidated after the meeting he had alone with the two of them about salary information. Borgs said that he would meet with Loehrke alone, but she said that was not an option and that Ber- ger had to be present. Borgs asked if Hasan could also be present and Loehrke said that also was not an option. When Borgs reiter- ated his refusal to meet with the two of them by himself, Loehrke told him to go home for the rest of the day and report back at 9 a.m. on the following morning. Borgs was told to surrender his key to the office and was escorted out of the building. When he resumed the next day, he met with Loehrke and Wilson in a con- ference room. Loehrke told him that his refusal to meet the pre- vious day constituted gross insubordination and that he was ter- minated. He was given a termination letter, signed by Loehrke, stating that over the last several weeks the agency had brought to his attention, “several concerns about [his] conduct and perform- ance.” This included failing to build constructive work relation- ships with management personnel and resistance to accepting performance goals. The letter also refers to his involvement in the January 17 memo, which is said to indicate his unwillingness to accept supervision of his work, and his refusal to meet with Loe- hrke and Berger on February 1 to discuss these issues, which is said to be an unacceptable challenge to her authority and to con- stitute gross insubordination. Hasan eventually agreed to meet with Loehrke and Berger on February 1. Hasan testified that during the meeting, which lasted about 20 minutes, Loehrke expressed her annoyance with the January 29 memo and said she would not tolerate such memos. Hasan told them that both memos were needs assessments meant to identify difficulties in the project and how to implement ways to revitalize it. After the meeting ended, Hasan received a warn- ing notice in his mailbox, stating that the memo of January 17, he had co-signed, constituted gross insubordination and any further acts of misconduct or insubordination would result in immediate discharge. Loehrke testified that Hasan also initially refused to meet with her and Berger and that he agreed only after he refused her order to leave the building and she had threatened to have him removed by the police. She said that the memo of January 17 indicated that Hasan and Borgs felt they did not need supervision by Berger and that the purpose of the meeting was to tell Hasan that she considered the content of the memo “inappropriate,” as was the method in which it was delivered to Berger, while she was away from the office. At the meeting, Hasan told her that the memo was a needs assessment. She told him that needs assessments were neccessary but that she had never seen a needs assessment done in such a manner, that she did not see the memo as a needs assessment but as a dismissal of Berger from his supervisory duties over the project which constituted insubordination, and that she expected him to work with Berger as his supervisor to complete the project. She attempted to give him a written warn- ing notice for insubordination, but he refused to take it or to sign it. She read the notice to him and put a copy in his mailbox. Loe- hrke testified that she did not discuss the January 29 memo with Hasan at the February 1 meeting because she considered it a separate issue from the January 19 memo, which she felt war- ranted strong disciplinary action. However, she and the director of administration met with Hasan on February 2 for about 2 hours in order to go over each of the concerns and accusations expressed in the January 29 memo. On March 25 Hasan was called to Loehrke’s office where he was told that he was being terminated. Hasan testified that he was given no reason for his termination at that time. On March 29 when he returned to pick up his belongings, he was given a letter signed by Loehrke stating that he was terminated for his conduct over the previous 9 months, including, refusal to accept supervi- sion on the NIDRR project and various confrontations with staff members. Loehrke testified that Hasan was terminated because he refused to sign a statement of personal project objectives given him by Berger, that his refusal was done “willingly” and “defi- antly,” that it constituted gross insubordination and subjected him to discharge. The Respondent’s brief confirms that the reason Hasan was terminated was his refusal to sign the performance objectives. Analysis and Conclusions The General Counsel contends that Hasan and Borgs were dis- charged in retaliation for their having engaged in concerted activ- ity protected by the Act. The Respondent contends that their actions in connection with the January 17 memo to Berger did not constitute protected activity and the other instances of con- certed activity on their part had nothing to do with their termina- tions. In cases where an employer’s motivation for a personnel ac- tion is in issue, it must be analyzed in accordance with the test outlined by the Board in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F. 2d 800 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). Under Wright Line, the General Counsel must persuade the Board that animus toward protected activity on the part of the employee was a substantial or motivating factor in the employer’s decision. Once that has been done, the burden shifts to the employer to demonstrate that it would have taken the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 704 same action even in the absence of protected activity on the em- ployee’s part. Manno Electric, 321 NLRB 278, 280 at fn. 12 (1996). The General Counsel’s initial burden is met by proof of protected activity on the part of the employee, employer knowl- edge of that activity and employer animus toward it. W. R. Case & Sons Cutlery Co., 307 NLRB 1457, 1463 (1992). a. Arnis Borgs In the case of Borgs, l find that his efforts throughout 1995 to obtain increased mileage reimbursement for agency employees constituted protected concerted activity in that they were “en- gaged in with or on the authority of other employees, and not solely by or on behalf of the employee himself.” See Meyers Industries, 281 NLRB 882, 885 (1986). His uncontradicted tes- timony that he told Loehrke that he had discussed the matter with at least five other employees establishes that the Respondent had at least constructive knowledge of the concerted nature of those activities. See Nicola’s, 299 NLRB 860, 863 (1990). Borgs’ un- contradicted testimony that Berger told him that Loehrke was “really angry” about his raising the reimbursement question es- tablishes the Respondent’s animus toward his activity. I have also found that Borgs was unlawfully disciplined for engaging in the protected activity of discussing employee salaries with another employee. Neither of these matters was so remote in time from his discharge as to preclude inferring a causal connection be- tween those activities and the discharge. Consequently, I find that there is evidence sufficient to support the inference that Borgs was discharged in retaliation for his having engaged in those activities. I also find that the Respondent has established that it would have discharged Borgs even in the absence of those pro- tected activities on his part. As is discussed below, I find that the memo that Borgs and Hasan sent to Berger on January 17 did not constitute activity protected by the Act; therefore, disciplinary action arising as a direct or indirect result thereof did not violate the Act. An em- ployer has the right to maintain order and to control its workplace and to discipline its employees for misconduct. Postal Service, 268 NLRB 274, 275 (1983). Loehrke credibly testified that she wanted Borgs to meet with her in Berger’s presence in order to make it clear to him that he had to work under Berger’s supervi- sion on the NIDRR project and to give him a written warning for his involvement in the January 17 memo. When Borgs refused to meet with her, she considered his action to be gross insubordina- tion which threatened to undermine her authority as executive director of the agency. I find that Borgs’ persistent refusal to comply with Loehrke’s direct order to meet constituted insubor- dination and that the Respondent did not violate the Act by dis- charging him for this misconduct. Cf. Carolina Freight Carriers Corp., 295 NLRB 1080 at fn. 1 (1989). The General Counsel also contends that Borgs’ discharge was unlawful because he was denied the right to be represented by a fellow employee, Hasan, at an investigatory interview he had reason to believe could result in disciplinary action against him. See NLRB v. Weingarten, Inc., 420 U.S. 251 (1975). I find the evidence establishes that the meeting that Borgs refused to attend with Loehrke and Berger was intended to be an investigatory interview; that he had reason to believe the interview could result in disciplinary action; that he made a timely request that Hasan be allowed to accompany him to the interview, which was de- nied; and that he was discharged because of his refusal to attend the interview. However, current Board law is clear that Weingar- ten rights to representation in investigatory interviews are limited to “employees in unionized workplaces who request the presence of a union representative.” E. I. DuPont & Co., 289 NLRB 627, 631 (1988). The General Counsel recognizes this but seeks to have the Board reconsider the matter. That request must be taken up with the Board. It is the duty of an administrative law judge to apply established Board precedent which the Board or the Su- preme Court has not reversed. E.g., Herbert Insulation Corp., 312 NLRB 602, 608 (1993); and Iowa Beef Packers, Inc., 144 NLRB 615, 616 (1965). I find that the Respondent did not violate Section 8(a)(1) by discharging Borgs for refusing to attend an investigatory interview on February 1, after his request that Hasan be allowed to accompany him at that interview was de- nied. b. Ashraful Hasan In the case of Hasan, I find the evidence fails to support an in- ference that the Respondent harbored animus toward Hasan based on protected activity on his part to the extent that it would violate the law in order to put a stop to such activity. See Raysel- IDE, Inc., 284 NLRB 879, 880 (1987). I find no evidence to support the General Counsel’s contention that Loehrke had “a hostile, almost paranoid attitude, toward employees who engage in concerted activities, or which she perceives as concerted.” Although there was uncontradicted testimony that Berger was critical, at least initially, of the “Brown Bag Lunch” program Hasan and Borgs started, Loehrke credibly testified that she sup- ported the idea of holding the lunches and there is no evidence that she interfered with the program or took any adverse action against any participant. Her testimony that she was a little con- cerned about the title of the “Ethics Committee” they proposed because it implied there was something unethical going on, with- out more, does not establish animus, particularly, where there is no evidence that she did anything to discourage or prevent the formation of such a committee or took any adverse action against the participants. Moreover, Hasan’s involvement in these activi- ties and the flap over the comments placed in his personnel file in connection with the interpreter matter were remote in time and unrelated to the events that led to his discharge. See D & W Food Centers, 305 NLRB 553 (1991). The main thrust of the General Counsel’s case with respect to Hasan is that the Respondent retaliated against him because of his involvement in the January 17 memo to Berger, which is asserted to have constituted protected activity on his and Borgs’ parts. Although both Hasan and Borgs have attempted to portray their January 17 memo to Berger as a “needs assessment,” this characterization and their memo of January 29 appear to be after- the-fact attempts at damage control. There is nothing in the Janu- ary 17 memo which details any problems with the NIDRR pro- ject or attributes them to supervisory shortcomings on the part of Berger. It does not propose any solutions or request that Loehrke or the Respondent take appropriate remedial action and it does not seek to enlist the support of other employees for their mutual aid or protection. Unlike the leaflets distributed to fellow em- ployees in Dreis & Krump Manufacturing, Inc.,4 this memo does not purport to protest the quality of Berger’s supervision as it relates their or other employees’ working conditions and unlike the complaints by employees in Fair Mercantile Co.,5 the memo is not an attempt to discuss problems related to Berger’s supervi- sion of them with higher management. It simply informs Berger 4 221 NLRB 309 (1975). 5 271 NLRB 1159 (1984). EPILEPSY FOUNDATION OF NORTHEAST OHIO 705 that his supervision of Hasan and Borgs “is not required.” The clear import of the memo is that they were dismissing him as their supervisor and from involvement in the NIDRR project. If what they wanted to do was to raise concerns about the project or the quality of Berger’s supervision, they could have said so. This was not a situation like that in NLRB v. Washington Aluminum Co.,6 in which employees who were not particularly sophisticated or articulate “had to speak for themselves as best they could.” 370 U.S. at 14. Borgs was a college graduate and Hasan has a doctorate. It must be assumed that they knew what they were doing and crafted the memo to accomplish their goal. It must also be assumed that, once the memo was issued, neither Hasan nor Borgs considered himself subject to Berger’s supervision. Since Loehrke was not directly involved in the project after September 1994, and in any event was out of town when the memo was issued, it in effect purported to remove the Respondent from any supervisory role over the NIDRR project. Not surprisingly, Loe- hrke interpreted the memo as a dismissal of Berger from the pro- ject and she considered it grossly insubordinate. The evidence also shows that when Loehrke received the memo of January 29, in which Borgs and Hasan actually detailed what they considered to be problems with the project and proposed some solutions, she promptly met with Hasan to discuss those matters and took no adverse action against him. l find that the actions of Borgs and Hasan in writing and issuing the January 17 memo were con- certed but were not protected under the Act. Accordingly, the Respondent did not violate the Act by issuing a disciplinary warning to Hasan for insubordination for his part in the purported dismissal of Berger from the NIDRR project. I also find that the Respondent’s actions in response to the memo were not moti- vated by animus toward Hasan for engaging in protected activity, but were prompted by his insubordinate conduct. There is evidence that Hasan had been involved in a number of incidents having nothing to do with protected activity, which Loehrke considered insubordinate and/or disruptive; including, the substance of the matter involving the interpreter (as opposed 6 370 U.S. 9 (1962). to Hasan’s complaint over the memo placed in his personnel file), confrontations over his demands for preferential treatment in obtaining clerical assistance and an incident in which his insensi- tive behavior adversely impacted the parents of an agency client. It may well be that she was looking for a reason to terminate him and that she seized on his refusal to sign the statement of project objectives to do so. In the absence of evidence sufficient to sup- port an inference that animus toward protected activity on his part was a motivating factor in his discharge, her reason is irrelevant. It is well recognized that an employer is free to run its business as it pleases and can discharge an employee for a good reason, a bad reason, or no reason, so long as it is not for an unlawful reason. See Wright Line, supra at 1084. Having found there was no nexus between Hasan’s discharge and protected activity on his part, I shall recommend that this allegation be dismissed. CONCLUSIONS OF LAW 1. The Respondent, Epilepsy Foundation of Northeast Ohio, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Respondent violated Section 8(a)(1) of the Act by coer- cively interrogating, issuing disciplinary warnings to and threat- ening Arnis Borgs with unspecified reprisals for discussing wage information, and by promulgating a rule prohibiting employees from discussing such information with other employees. 3. The aforesaid unfair labor practices are unfair labor prac- tices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 4. The Respondent did not engage in the unfair labor practices alleged in the consolidated complaint not specifically found here. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action de- signed to effectuate the policies of the Act. [Recommended Order omitted from publication.]