Epilepsy Foundation v. National Labor Relations Board

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 s 8(a)(1) of the National Labor Relations Act

("NLRA" or "Act"). In reaching this result, the NLRB first

interpreted s 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 s 7 of the NLRA, rather

than from a union's right of representation under s 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 s 7 of the NLRA. An otherwise

reasonable interpretation of s 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 s 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 s 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 "s 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 s 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 s 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 s 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. s 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 s 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 s 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 s 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. s 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 s 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 s 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 s 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.