Braun Consulting News
News on Personnel, Labor Relations and Benefits

See our Archive Pages for Back Issues of Braun Consulting News!

Epilepsy Foundation of Northeast Ohio v. NLRB, Decision.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 2, 2001 Decided November 2, 2001
No. 00-1332
Epilepsy Foundation of Northeast Ohio,
Petitioner
v.
National Labor Relations Board,
Respondent
---------
Petition for Review and Cross-Application for
Enforcement of an Order of the
National Labor Relations Board
---------
Anita Barondes argued the cause for petitioner. With her
on the briefs were Peter Chatilovicz, Ronald A. Lindsay, and
Steven M. Moss.

Maurice Baskin, Stephen A. Bokat, Robin S. Conrad,
Heather L. MacDougall, Daniel V. Yager, Harold P. Coxson
Jr., Burton J. Fishman, Robert J. Verdisco, Jan S. Amund-
son, and Quentin Riegel were on the brief for amici curiae
LPA, Inc., et al., in support of petitioner.

Meredith L. Jason, Supervisory Attorney, National Labor
Relations Board, argued the cause for respondent. With her
on the brief were Arthur F. Rosenfeld, General Counsel, John
H. Ferguson, Associate General Counsel, and Aileen A. Arm-
strong, Deputy Associate General Counsel. Frederick L.
Cornnell, Jr., Attorney, entered an appearance.

James B. Coppess argued the cause for amicus curiae
American Federation of Labor and Congress of Industrial
Organizations, in support of respondent. With him on the
brief were Jonathan P. Hiatt and Laurence Gold.

Before: Edwards, Rogers, and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Edwards.
Edwards, Circuit Judge: Petitioner, the Epilepsy Founda-
tion of Northeast Ohio ("the Foundation"), challenges a Na-
tional Labor Relations Board ("NLRB" or "Board") decision
finding that the Foundation committed unfair labor practices
when it discharged Ashraful Hasan and Arnis Borgs in
violation of § 8(a)(1) of the National Labor Relations Act
("NLRA" or "Act"). In reaching this result, the NLRB first
interpreted § 7 of the Act to extend the rule of NLRB v. J.
Weingarten, Inc., 420 U.S. 251 (1975), to nonunion work-
places. The Board then applied the new rule retroactively in
holding the Foundation liable for Borgs' discharge. Epilepsy
Found. of Northeast Ohio, 331 N.L.R.B. No. 92, at 1 (July 10,
2000) ("Board Decision"). The NLRB also found that the
Foundation committed an unfair labor practice in firing Ha-
san for engaging in protected concerted activity.

In Weingarten, the Supreme Court held that employees in
a unionized workplace may request the presence of a union
representative at an investigatory interview which the em-
ployee reasonably believes might result in disciplinary action.
420 U.S. at 256. In 1982, in Materials Research Corp., 262
N.L.R.B. 1010 (1982), the Board extended the Weingarten
rule to cover employees in nonunion workplaces, holding that
such employees have a right to request the presence of a
coworker in an investigatory interview which the employee
reasonably believes could result in disciplinary action. This
holding was premised on the assumption that an employee's
right to assistance emanates from § 7 of the NLRA, rather
than from a union's right of representation under§ 9. The
Board reversed itself in Sears, Roebuck & Co., 274 N.L.R.B.
230 (1985), holding that Weingarten principles do not apply in
circumstances where there is no certified or recognized union.
Three years later, in E.I. DuPont de Nemours, 289 N.L.R.B.
627, 628 (1988), the Board adhered to the rule enunciated in
Sears, but acknowledged that "the statute might be amenable
to other interpretations." In this case, the Board has come
full circle, reimposing the holding of Materials Research.

The Foundation claims that the holding in this case is
unlawful because it cannot be squared with Weingarten. We
disagree. The Court's decision in Weingarten did not deal
with an employee's request for coworker representation in a
nonunion setting, and the Board's decision in this case is a
reasonable reading of § 7 of the NLRA. An otherwise
reasonable interpretation of § 7 is not made legally infirm
because the Board gives renewed, rather than new, meaning
to a disputed statutory provision. It is a fact of life in NLRB
lore that certain substantive provisions of the NLRA invari-
ably fluctuate with the changing compositions of the Board.
Because the Board's new interpretation is reasonable under
the Act, it is entitled to deference. See United States v.
Mead Corp., 533 U.S. ___, 121 S. Ct. 2164 (2001).

The Board erred, however, in giving retroactive application
to its current interpretation of § 7. Employees and employ-
ers alike must be able to rely on clear statements of the law
by the NLRB. Because, at the time of Borgs' scheduled
interview, employees in nonunion workplaces possessed no
right to have a coworker present, the Foundation's decision to
discharge Borgs for refusing to meet alone with his supervi-
sors was not unlawful under the NLRA. We also reject the
Board's determination that the Foundation committed an
unfair labor practice when it discharged Hasan for purported
protected concerted conduct. The Board's judgment on Ha-
san is not supported by substantial evidence and it is based
on an erroneous application of established law. Hasan was
discharged for unprotected, insubordinate behavior.

I. Background

Arnis Borgs and Ashraful Hasan worked as a transition
assistant and a transition specialist, respectively, for the
Foundation and were both supervised by Rick Berger. After
some disagreements with Berger, Borgs and Hasan sent a
memorandum to Berger on January 17, 1996 stating:
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 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.

Exhibit GC-12, reprinted in Board Decision, at 1 n.4. On
January 29, 1996, Borgs and Hasan sent a lengthier memo-
randum to Christine Loehrke, Berger's supervisor, outlining
several complaints about Berger's supervision and identifying
occasions when Berger acted, in their opinion, inappropriately
and unprofessionally. See Exhibit GC-13, reprinted in Joint
Appendix ("J.A.") 209.

Berger then requested to meet individually with Borgs and
Hasan. After airing several different proposals, Borgs asked
for Hasan to attend a meeting at which he, Berger, and
Loehrke were scheduled to attend. Loehrke denied Borgs'
request to have Hasan attend the meeting. When Borgs
refused to meet without Hasan, Loehrke told him to go home
for the day and return the next morning. Borgs returned to
work the next day and was fired by Loehrke for refusing to
meet with his supervisors. Board Decision, at 1-2.

Hasan, unlike Borgs, met with Berger and Loehrke on
February 1. At this meeting, Loehrke told Hasan that the
memo of January 17 was inappropriate. After the meeting,
Hasan received a warning notice from Loehrke stating that
Hasan's involvement with the January 17 memo was "gross
insubordination" and that any further acts of misconduct or
insubordination would result in Hasan's immediate discharge.
Loehrke and Hasan met again on February 2 to review the
January 29 memo. Subsequently, in March, Hasan refused
to sign performance objectives given to him by Berger. On
March 25, Hasan was summoned to Loehrke's office and told
that he was being discharged. The Administrative Law
Judge's ("ALJ") decision notes that,

[o]n March 29, when he returned to pick up his belong-
ings, [Hasan] was given a letter signed by Loehrke
stating that he was terminated for his conduct over the
previous nine months, including, refusal to accept super-
vision 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 "defiantly," that it con-
stituted gross insubordination and subjected him to dis-
charge. The Respondent's brief confirms that the reason
Hasan was terminated was his refusal to sign the perfor-
mance objectives.

Id. at 29.

The ALJ determined that because "current Board law" did
not extend Weingarten rights to nonunion employees, the
Foundation's discharge of Borgs did not violate § 8(a)(1). Id.
at 30. The ALJ likewise held that Hasan's termination was
not a violation of the Act because "there was no nexus
between Hasan's discharge and protected activity on his
part." Id. at 31.

The NLRB, by a 3-to-2 vote, reversed the ALJ's finding in
part and extended the Weingarten rule to nonunion workers.
The Board applied this extension retroactively to Borgs'
conduct, held that Borgs' request to have a coworker attend
the meeting with the supervisor was therefore protected
activity, and that the Foundation discharged Borgs for engag-
ing in protected activity in violation of the Act. Id. at 4-5.
The NLRB, by the same 3-to-2 vote, held that the January 17
and January 29 memoranda were "inextricably intertwined,"
that both memoranda "related to [Borgs' and Hasan's] condi-
tions of employment," that Hasan was punished for engaging
in protected activity, and that the Foundation did not demon-
strate that they would have fired Hasan even in the absence
of this protected activity. Id. at 6-7. The Foundation then
petitioned this court for review of the findings of violations on
these unfair labor practice charges, and the Board cross-
petitioned for enforcement.

II. Analysis

This court must affirm the NLRB's findings of fact if
"supported by substantial evidence on the record considered
as a whole." 29 U.S.C. s 160(e), (f) (1994). And this court
must affirm the NLRB's interpretation of the Act "unless it
conflicts with the unambiguously expressed intent of the
Congress or is otherwise not a permissible construction of the
statute." Yukon-Kuskokwim Health Corp. v. NLRB, 234
F.3d 714, 716 (D.C. Cir. 2000) (quotations omitted).

A. The Weingarten rule

The Supreme Court in Weingarten held that the NLRB's
determination that "§ 7 creates a statutory right in an em-
ployee to refuse to submit without union representation to an
interview which he reasonably fears may result in his disci-
pline" was "at least permissible under" the Act. 420 U.S. at
256, 266-67. Both union and nonunion employees fall under
the protections of § 7 of the Act, see NLRB v. Washington
Aluminum Co., 370 U.S. 9 (1962); however, because Wein-
garten involved a unionized workplace, the Court did not
address whether the right extended to workers in nonunion
workplaces.

In the years since the Court's decision in Weingarten, the
Board has changed its position several times in considering
whether employees in nonunion workplaces may invoke the
Weingarten right. In 1982, in Materials Research, 262
N.L.R.B. 1010, the Board relied on § 7 of the NLRA and
explicitly extended the Weingarten rule to a nonunion work-
place. The Board held that "the rationale enunciated in
Weingarten compels the conclusion that unrepresented em-
ployees are entitled to the presence of a coworker at an
investigatory interview." Id. at 1014.

Three years later, in Sears, Roebuck, 274 N.L.R.B. at 230
n.5, 232, the NLRB reversed course completely, holding that
the Act "compels" the conclusion that Weingarten "applies
only to unionized employees." In 1988, in E.I. DuPont, 289
N.L.R.B. at 628, the Board once again modified its position,
holding that the decision in Materials Research extending
Weingarten to nonunion workers "represented a permissible
construction of the Act, but not the only permissible construc-
tion." However, the Board decision in DuPont declined to
adopt the broad but permissible interpretation, instead hold-
ing that Weingarten does not extend to "an employee in a
nonunionized workplace." Id. at 628. Finally, in the case at
hand, the NLRB "overrule[d]" DuPont, because it is "incon-
sistent with the rationale articulated in the Supreme Court's
Weingarten decision, and with the purposes of the Act."
Board Decision, at 2.

On appeal, the Foundation argues that the Board's decision
regarding Weingarten rests on an impermissible interpreta-
tion of the Act. The Foundation's claim is based on three
arguments. First, the presence of a coworker in an investi-
gatory interview is neither "concerted" nor "for mutual aid
and protection" and, therefore, it is not within the ambit of
s 7. Second, the application of Weingarten in the nonunion
workplace is at odds with § 9(a) of the Act, which provides
that "[r]epresentatives designated or selected for the pur-
poses of collective bargaining by a majority of the employees
in [an appropriate bargaining unit] shall be the exclusive
representatives of all the employees in such unit." 29 U.S.C.
s 159(a). Third, the Weingarten rule violates the First
Amendment rights of nonunion employers to speak individu-
ally with their employees. The Foundation advances two
additional claims: first, that the interviews at issue in this
case were not "investigatory interviews" as defined by Wein-
garten; and, second, that the Board's departure from prece-
dent has not been adequately explained. All of these chal-
lenges fail.

Section 7 of the NLRA states that "[e]mployees shall have
the right ... to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or pro-
tection." 29 U.S.C. § 157. It follows, therefore, that if
"hav[ing] a coworker present at an investigatory interview
which the employee reasonably believes might result in disci-
plinary action," Board Decision, at 1, is concerted action for
mutual aid or protection, then the Board's decision rests on a
permissible construction of the statute. In a unionized work-
place, an employee's request for union representation during
an investigatory interview is undoubtedly concerted activity
for mutual aid and protection. Thus, as noted in NLRB v.
City Disposal Sys., Inc., 465 U.S. 822, 832 (1984), even a "lone
employee's invocation of a right grounded in his collective-
bargaining agreement is ... a concerted activity in a very
real sense." The Foundation argues, however, that an unrep-
resented employee cannot invoke any collective rights of the
sort found in a unionized workplace, so a request for a
coworker's presence during an investigatory interview cannot
be viewed as concerted activity for mutual aid and protection.
In other words, because a coworker owes no "duty" to a
requesting worker, there is no foundation for "concerted"
activity. This view of concerted activity is terribly shortsight-
ed.

The NLRB has determined that the act of requesting
another's presence at an investigatory interview "enhances
the employees' opportunities to act in concert to address their
concern 'that the employer does not initiate or continue a
practice of imposing punishment unjustly.' " Board Decision,
at 3 (quoting Weingarten, 420 U.S. at 260-61). In other
words, the presence of a coworker gives an employee a
potential witness, advisor, and advocate in an adversarial
situation, and, ideally, militates against the imposition of
unjust discipline by the employer. The Board's position also
recognizes that even nonunion employees may have a shared
interest in preventing the imposition of unjust punishment,
and an employee's assertion of Weingarten invokes this
shared interest. The Board's determination that an employ-
ee's request for a coworker's presence at an investigatory
interview is concerted action for mutual aid and protection
and thus within the realm of § 7 is therefore reasonable.
And, as the Supreme Court has made clear, "[i]t is the
province of the Board, not the courts, to determine whether
or not the 'need' [for a Weingarten-type rule] exists in light of
changing industrial practices and the Board's cumulative ex-
perience in dealing with labor-management relations." Wein-
garten, 420 U.S. at 266.

We agree with the Board that Weingarten itself supports
the Board's judgment in this case. As the Board noted:

[We were] correct in Materials Research to attach much
significance to the fact that the Court's Weingarten
decision found that the right was grounded in the lan-
guage of Section 7 of the Act, specifically the right to
engage in "concerted activities for the purpose of mutual
aid or protection." This rationale is equally applicable in
circumstances 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 continue a practice of imposing punish-
ment unjustly." Thus, affording Weingarten rights to
employees in these circumstances 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
N.L.R.B. 1309, 1311 (1978).

Board Decision, at 3 (footnote omitted).

We find no merit in petitioner's claim, which rests on the
dissenting opinion of Board Member Brame, see id. at 10,
that an extension of Weingarten rights to nonunion workers
conflicts with § 9(a) of the Act. The Board's response to this
argument is compelling:

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
addressed 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 sequitur." Id. at 127.

[T]he system of exclusive representation ... which [it
is claimed] ... would be derogated from by the exten-
sion of Weingarten to the unorganized, is expressly
one of collective bargaining, not of dealing. Accord-
ingly, if, as the Supreme Court held, the employer has
no statutory duty to bargain with the Weingarten
representative, the function of that representative in
the unorganized setting cannot be in derogation of the
exclusivity principle or any other important statutory
policy.

Id. at 128 [quoting Matthew W. Finkin, Labor Law by
Boz--A Theory of Myers Industries, Inc., Sears, Roe-
buck and Co., and Bird Engineering, 71 Iowa L. Rev. 155,
182 (1985) (footnotes omitted)]. In other words, even
assuming that the role of an employee 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 "bar-
gain collectively" with the Weingarten representative.
As the Third Circuit held, the Section 9(a) exclusivity
principle does not limit the Section 7 rights of nonunion-
ized 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 obli-
gation to deal with an employee representative of non-
unionized employees.

Board Decision, at 3-4. There is nothing more to be said on
this matter, for the Board decision says it all.

In its brief to this court, the Foundation asserts for the
first time that the Board's interpretation of the NLRA places
an unconstitutional restriction on employer speech. And at
oral argument before the court, counsel for the Foundation
argued for the first time that, even if Weingarten rights are
applicable in a nonunionized workplace, the facts of this case
do not implicate Weingarten. Neither claim is properly
before the court, because neither was raised with the Board
in the first instance. Under § 10 of the Act, "[n]o objection
that has not been urged before the Board ... shall be
considered by the court, unless the failure or neglect to urge
such objection shall be excused because of extraordinary
circumstances." 29 U.S.C. § 160(e); see Exxel/Atmos, Inc. v.
NLRB, 147 F.3d 972, 978 (D.C. Cir. 1998). There are no
extraordinary circumstances here. Although the Foundation
could not challenge the Board's findings regarding the factual
predicates supporting the application of Weingarten until
after the issuance of the Board's decision, it could have
objected to the Board's decision in a petition for rehearing.
"The failure to do so prevents consideration of the question
by the courts." Woelke & Romero Framing, Inc. v. NLRB,
456 U.S. 645, 666 (1982).

Finally, the Foundation argues that the Board has not
provided an adequate explanation for its decision. We need
not tarry long over this claim, for it is plainly meritless.
Apart from the detailed discussions recited above, the Board
also relied heavily on its prior decision in Materials Research
to support the judgment that Weingarten rights are applica-
ble in nonunion workplaces. See Board Decision, at 3. The
Board's conclusion obviously is debatable (because the Board
has "changed its mind" several times in addressing this
issue); but the rationale underlying the decision in this case
is both clear and reasonable. That is all that is necessary to
garner deference from the court. "When a challenge to an
agency construction of a statutory provision, fairly conceptu-
alized, really centers on the wisdom of the agency's policy,
rather than whether it is a reasonable choice within a gap left
open by Congress, the challenge must fail." Chevron U.S.A.
Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 866
(1984). The Foundation's challenge here is merely an attack
on the wisdom of the agency's policy, and, therefore, the
challenge must fail.

B. Retroactivity

The Foundation argues that even if the NLRB's new
interpretation of § 7 is upheld, the holding that Weingarten
rights are applicable in nonunion workplaces should not apply
retroactively to impose damages for Borgs' discharge. We
agree.

In considering whether to give retroactive application to a
new rule,

[t]he governing principle is that when there is a "substi-
tution of new law for old law that was reasonably clear,"
the new rule may justifiably be given prospectively-only
effect in order to "protect the settled expectations of
those who had relied on the preexisting rule." Williams
Natural Gas Co. v. FERC, 3 F.3d 1544, 1554 (D.C. Cir.
1993). By contrast, retroactive effect is appropriate for
"new applications of [existing] law, clarifications, and
additions." Id.

Pub. Serv. Co. of Colo. v. FERC, 91 F.3d 1478, 1488 (D.C. Cir.
1996); see also Aliceville Hydro Assocs. v. FERC, 800 F.2d
1147, 1152 (D.C. Cir. 1986) (discussing the distinction between
"new applications of law" and "substitutions of new law for
old law").

In light of this governing principle, there is little doubt
here that the Board erred in giving retroactive effect to its
new interpretation of § 7. At the time when this case arose,
the Board's policy on the application of Weingarten rights
was absolutely clear -employees not represented by a union
could not invoke Weingarten. Thus, Borgs unquestionably
had no right to have a coworker present at an interview with
his supervisors. And the employer obviously acted in con-
formity with the prevailing law in denying Borgs' request to
have a coworker present during his scheduled interview.
Neither Borgs nor the Foundation could have known for sure
that the established law might change, so Borgs acted at his
peril in defying his employer and the Foundation acted with
no apparent risk in following the law.

In these circumstances, "notions of equity and fairness," see
Cassell v. FCC, 154 F.3d 478, 486 (D.C. Cir. 1998), militate
strongly against retroactive application of the Board's "substi-
tution of new law for old law that was reasonably clear,"
Aliceville Hydro, 800 F.2d at 1152. Indeed, it would be a
"manifest injustice" to require the Foundation to pay dam-
ages to an employee who, without legal right, flagrantly
defied his employer's lawful instructions. See Clark-Cowlitz
Joint Operating Agency v. FERC, 826 F.2d 1074, 1081 (D.C.
Cir. 1987). We therefore decline to enforce the Board's
decision on retroactivity.

C. Substantial Evidence Relating to Hasan's Discharge

The final issue in dispute concerns the Board's holding that
the Foundation committed an unfair labor practice when it
reprimanded and discharged Hasan. The Foundation claims
that Hasan was disciplined for insubordination. The Board,
however, found that the acts of defiance by Hasan and Borgs
against their supervisors were merely attempts by the em-
ployees to "raise issues related to their conditions of employ-
ment." Board Decision, at 6-7. Thus, according to the
Board, Hasan was engaged in protected concerted activity
which was the motivating factor for his employer's decision to
reprimand and thereafter terminate him. Id. at 6. Because
we can find no support in the record for the Board's decision,
we reverse.

It is well understood that this court must uphold factual
findings of the Board if they are supported by substantial
evidence. See Universal Camera Corp. v. NLRB, 340 U.S.
474, 487-88 (1951). "The Board's findings are entitled to
respect; but they must nonetheless be set aside when the
record before a Court of Appeals clearly precludes the
Board's decision from being justified by a fair estimate of the
worth of the testimony of witnesses or its informed judgment
on matters within its special competence or both." Id. at 490.
Thus, "a reviewing court is not barred from setting aside a
Board decision when it cannot conscientiously find that the
evidence supporting that decision is substantial, when viewed
in the light that the record in its entirety furnishes, including
the body of evidence opposed to the Board's view." Id. at
488. On the record at hand, we find that the body of
evidence opposed to the Board's view is overwhelming.

The Foundation reprimanded and then terminated Hasan
because of his "gross insubordination" in signing and deliver-
ing the January 17 memo to his supervisors, and for his
subsequent refusal to sign performance objectives. In the
January 17 memo, Borgs and Hasan defiantly "reiterate[d]"
to their supervisor that "[his] supervision of the program
operations performed by them [was] not required." Board
Decision, at 1 n.4. This was indisputably an act of gross
insubordination, just as the Foundation claims. The Board,
however, purports to excuse the insubordination by finding
that the employees' January 17 and 29 memoranda were
"inextricably intertwined," see id. at 6, and that the January
29 memo somehow alleviated the preceding insubordination.
This outlandish reasoning draws no support from the evi-
dence in the record.

On January 17, Hasan flatly asserted that he would not
recognize the authority of his current supervisor, or any other
supervisor for that matter. See Board Decision, at 1 n.4
(stating "[o]nly support staff assistance is needed"). The
memo contained no specific objections to any terms and
conditions of employment, but, rather, simply rejected Ber-
ger's supervision. Therefore, the situation here does not fall
within the "narrow category of cases" where "the identity of
the supervisor is directly related to terms and conditions of
employment" and concerted activity "to effect the discharge
or replacement of [that] supervisor" may thus be protected.
See NLRB v. Oakes Mach. Corp., 897 F.2d 84, 89 (2d Cir.
1990). The January 29 memo, sent nearly two weeks later,
merely discussed the opinions and feelings of Hasan; it did
not address Hasan's prior insubordinate conduct. Even if
Hasan could somehow recast his prior conduct as protected
activity, the January 29 memo did not do so, because Hasan
never purported to apologize or distance himself in any way
from the January 17 memo. At oral argument, counsel for
the Board suggested that Hasan and Borgs were simply
"inartful" in their objection to their working conditions and
that the January 29 memo more accurately explains Hasan's
and Borgs' complaints regarding the terms and conditions of
their employment. See also Board Decision, at 7. This
position is wholly untenable. The January 17 memo admits
of only one fair reading: Borgs and Hasan told their supervi-
sor that they would not recognize his authority in connection
with their work. That was insubordination, not protected
concerted activity. Therefore, Hasan was properly repri-
manded for this act of insubordination.

Hasan received a written reprimand immediately after his
meeting with management on February 1 concerning the
January 17 memo. He knew from this written reprimand
that he had committed an act of "gross insubordination" and
that any further acts of misconduct or insubordination would
result in his termination. Despite this fair warning (which, so
far as we can tell, he never protested), Hasan subsequently
refused to sign performance objectives given to him by his
supervisor. He was then fired. The Board does not suggest
that Hasan's refusal to sign the performance objectives was
protected activity, for it was not. Rather, according to the
Board, "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 protected activity, espe-
cially his involvement with the January 17 memo." Board
Decision, at 7. The glaring flaw in the Board's reasoning is
the erroneous assumption that the January 17 memo was
protected. It was not, so the termination of Hasan for his
involvement with the January 17 memo and his subsequent
refusal to sign performance objectives was not unlawful.

The Board suggests that an "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.' " Id. at 6. This may be true,
but the principle is inapposite in this case. The January 17
memo was a directive from Borgs and Hasan to their supervi-
sor that they would no longer recognize his supervisory
authority. The memo did not otherwise mention working
conditions, nor did it protest that the supervisor's conduct
was somehow having an adverse impact on employee working
conditions. See Board Decision, at 22-23 (dissenting opinion
of Member Brame); 31 (ALJ's findings regarding the Janu-
ary 17 memo). The dissenting opinion of Member Hurtgen
summarizes the record evidence perfectly:

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 [Foundation] was critical of
the January 17 memo, and thus Hasan and Borgs wrote
another memo on January 29. As the [ALJ] 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 [Foundation]. Indeed, the
[Foundation], through Loehrke, met with Hasan to dis-
cuss that memo. It was the January 17 letter that raised
the anger of [Foundation], and that letter was unprotect-
ed.

Board Decision, at 10.

The Board does not have authority to regulate all behavior
in the workplace and it cannot function as a ubiquitous
"personnel manager," supplanting its judgment on how to
respond to unprotected, insubordinate behavior for those of
an employer. It is well recognized that an employer is free to
lawfully run its business as it pleases. This means that an
employer may discharge an employee for a good reason, a
bad reason, or no reason, so long as it is not for an unlawful
reason. See NLRB v. Transp. Mgmt. Corp., 462 U.S. 393,
394 (1983) ("The National Labor Relations Act ... makes
unlawful the discharge of a worker because of union activity
... but employers retain the right to discharge workers for
any number of other reasons unrelated to the employee's
union activities."); Wright Line, 251 N.L.R.B. 1083, 1089
(1980) (establishing a test "to determine the relationship, if
any, between employer action and protected employee con-
duct"). Although the Board has considerable leeway in deter-
mining the exact scope of protected activity, see Weingarten,
420 U.S. at 266, it has no authority to extend the protections
of the Act to plainly insubordinate behavior unrelated to the
terms and conditions of employment. Because absolutely no
evidence supports any nexus between the January 17 memo
and any protected activity by Hasan concerning the terms
and conditions of his employment, we reverse the NLRB's
finding with regard to Hasan.

III. Conclusion

For the foregoing reasons, we deny in part and grant in
part the petition for review, and grant in part and deny in
part the cross-application for enforcement. We grant the
cross-application for enforcement for the Board's decision to
extend Weingarten under § 7 of the Act to nonunion employ-
ees. We reverse the Board's retroactive application of their
new interpretation and the Board's findings that the Founda-
tion discharged Borgs and Hasan for engaging in protected
activity.

So ordered.

Back to Article 

The Contents of this News Letter are intended for general information and should not be construed as legal advise or opinion. Click Here to view our Web Site Disclaimer Page.  *  INSIDE   * HOME  * ARCHIVES Braun Consulting Group * Insurance * Labor * Personnel