Pikes Peak Pain Program

National Labor Relations Board - Board Decisions

Aug 20, 1998

326 N.L.R.B. 136 (N.L.R.B. 1998)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 136
Myth, Inc. d/b/a Pikes Peak Pain Program and Kim
M. McKeon. Case 27–CA–14384
August 20, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX, LIEBMAN,
HURTGEN, AND BRAME
On June 16, 1997, Administrative Law Judge Clifford
H. Anderson issued the attached decision. The General
Counsel filed exceptions and a supporting brief, the Re-
spondent filed an answering brief, and the General Coun-
sel filed a brief in reply.1
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,2 and conclusions and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

CHAIRMAN GOULD, dissenting.
The General Counsel expressly provided an opportu-
nity for the Board to abandon the restrictive interpreta-
tion of concerted activity adopted by the Board in
Meyers Industries1 by alleging in the complaint and argu-
ing before the judge that Charging Party McKeon’s filing
of a wage claim with the Colorado State Department of
Labor constitutes concerted activity. In so doing, the
General Counsel urges a return to the theory of concerted
activity set forth in Alleluia Cushion Co., 221 NLRB 999
(1975). My colleagues rebuff the General Counsel’s
offer to revisit this most important area of law. I accept
it.
The warring interpretations of concerted activity set
forth in Alleluia and Meyers II reflect two very different
views of the Act and the Board’s role in the statutory
scheme of labor laws. The concept of implied concerted
activity in Alleluia expands the reach of Section 7 of the
Act to individual action that asserts a collective right and
requires the Board to accommodate other labor laws by
protecting individual employees who assert rights created
for all employees by workplace-related statutes. It pro-
tects unsophisticated, unorganized employees and pre-
sents a clear analytical approach that reduces the number
of issues to be litigated.

1 Kenneth P. Prill, charging party in Meyers Industries, 281 NLRB
882 (1986), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir.
1987), cert. denied sub nom. Meyers Industries v. NLRB, 487 U.S. 1207
(1988), participated in this case as amicus curiae and filed an amicus
brief.
2 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.
1 Meyers Industries (Meyers I), 268 NLRB 493 (1984), remanded
sub nom. Prill v. NLRB (Prill I), 755 F.2d 941 (D.C. Cir. 1985); Meyers
Industries (Meyers II), 281 NLRB 882 (1986), affd. sub nom. Prill v.
NLRB (Prill II), 835 F.2d 1481 (D.C. Cir. 1987), cert. denied mem.
Meyers Industries, 487 U.S. 1205 (1988).
The Meyers II theory of concerted action restricts the
reach of Section 7 to employee action which has a direct
link to actual group action and confines the Board’s role
to that of a highly technical arbiter of the statute it ad-
ministers. It creates a division between the protection
afforded organized and unorganized employees and pre-
sents a complex analysis which generates litigation. The
acceptance or rejection of precedent on the theory of
concerted activity indicates, perhaps more clearly than in
any other area of the statute we administer, where a
Board member stands on such critical matters as statu-
tory construction and the scope of the Board’s role in
administering the Act.
I am of the view that Alleluia’s construction of Section
7 and its understanding of the Board’s responsibility to
accommodate other labor laws is the better view. It is
with disappointment, therefore, that I find that I stand
alone.
A review of the rationales of Alleluia and Meyers II
and court response to Meyers II illuminates the policy
considerations underlying each view. It also provides the
basis for concluding that policy considerations weigh far
more heavily toward the Alleluia understanding of con-
certed activity.
The rationale of Alleluia Cushion
In Alleluia, employee Henley was discharged for noti-
fying the California Occupational Safety and Health
Administration (OSHA) of unsafe conditions at the
workplace. There was no evidence that Henley purported
to represent other employees or sought their aid in pursu-
ing safety complaints. There was also no evidence that he
acted in conjunction with other employees, that his ac-
tion was an outgrowth of previous employee discussions,
or that other employees shared his concern for safety.
The Board concluded, however, that this absence of evi-
dence was not sufficient to establish that other employees
did not share his interest in safety or support his safety
complaints.
Asserting that safe working conditions were “matters
of great and continuing concern for all within the work
force,”2 the Board observed that Congress had recog-
nized this concern through enactment of the Occupa-
tional Safety and Health Act,3 as had state and local gov-
ernments through the passage of similar legislation. The
Board found that Henley’s filing of the OSHA complaint
was in furtherance of employee rights under the Califor-
nia Occupational Safety and Health Act. The Board held:
2 Alleluia Cushion Co., supra at 1000.
3 29 U.S.C. §§ 651–678.
326 NLRB No. 28
PIKES PEAK PAIN PROGRAM 137

It would be incongruous with the public policy enunci-
ated in such occupational safety legislation (i.e., to pro-
vide safe and healthful working conditions and to pre-
serve the nation’s human resources) to presume that,
absent an outward manifestation of support, Henley’s
fellow employees did not agree with his efforts to se-
cure compliance with the statutory obligations imposed
on Respondent for their benefit. Rather, since mini-
mum safe and healthful employment conditions for the
protection and well-being of employees have been leg-
islatively declared to be in the overall public interest,
the consent and concert of action emanates from the
mere assertion of such statutory rights. Accordingly,
where an employee speaks up and seeks to enforce
statutory provisions relating to occupational safety de-
signed for the benefit of all employees, in the absence
of any evidence that fellow employees disavow such
representation, we will find an implied consent thereto
and deem such activity to be concerted. [Id. at 1000,
footnote omitted.]

In essence, the Board found that the assertion of a
work-related statutory right created the rebuttable pre-
sumption that other employees joined or consented in the
assertion of the right. It further found that the Act cannot
be administered in a vacuum. Instead, the Board must
recognize the purposes and polices of other employment
legislation, and construe the Act in a manner which sup-
ports the overall scheme of labor laws. By so doing, the
Alleluia Board followed the teaching of the Supreme
Court in Southern Steamship Co. v. NLRB, 316 U.S. 31,
47 (1942), that :

[T]he Board has not been commissioned to effectuate
the policies of the Labor Relations Act so single-
mindedly that it may wholly ignore other and equally
important Congressional objectives. Frequently the en-
tire scope of Congressional purpose calls for careful
accommodation of one statutory scheme to another,
and it is not too much to demand of an administrative
body that it undertake this accommodation without ex-
cessive emphasis upon its immediate task.

The overruling of Alleluia Cushion and the new theory of
concerted activity set forth in Meyers I and II
In 1984, a newly constituted Board halted the trend of
expanding the protections of Section 7 with the overrul-
ing of Alleluia and the adoption of an expressively nar-
row construction of Section 7 in Meyers I. Asserting that
the legislative history of Section 7 shows that Congress
considered the concept of “concerted activities” in terms
of individuals united in pursuit of a common goal, the
Board concluded that concerted activity must involve
actual collective activity in some form. In rejecting the
approach of Alleluia, the Board stated:

[W]e are persuaded that the per se standard of con-
certed activity, by which the Board determines what
ought to be of group concern and then artificially pre-
sumes that it is of group concern, is at odds with the
Act. The Board and courts always considered, first,
whether the activity is concerted, and only then,
whether it is protected. This approach is mandated by
the statute itself, which requires that an activity be both
“concerted” and “protected.” A Board finding that a
particular form of individual activity warrants group
support is not a sufficient basis for labeling that activity
“concerted” within the meaning of Section 7. [268
NLRB at 496.]

In support of this approach, the Board emphasized that the
courts of appeals that had reviewed the post-Alleluia cases
had rejected the per se standard of concerted activity.4 The
Board then went on to define concerted activity as, in gen-
eral, requiring an employee’s activity to be engaged in with
or on the authority of other employees. It referred to this as
the “objective” standard of concerted activity.
Courts of Appeals’ response to Meyers I
1. The D.C. Circuit. On February 26, 1985, the D.C.
Circuit remanded Meyers I on the ground, inter alia, that
the Board had erroneously assumed that its construction
of “concerted activities” was required by the Act.5 In
finding that the Act did not mandate the Meyers I inter-
pretation of concerted activity, the court stated that it
read Supreme Court decisions interpreting Section 7 as
indicating that the statute gives the Board substantial
responsibility to determine the scope of Section 7.6
The court made special reference to NLRB v. City Dis-
posal Systems,7 a Supreme Court decision issuing after
Meyers I, addressing the question of whether an individ-
ual employee’s assertion of a right covered by a collec-
tive-bargaining agreement constituted concerted activity.
In City Disposal, the Supreme Court was presented with
the Board’s doctrine in Interboro Contractors,8 which
provides that an individual employee making a complaint
under a collective-bargaining agreement is engaged in
concerted activity within the meaning of Section 7 of the
Act. The Court of Appeals for the Sixth Circuit had re-
jected the Interboro doctrine on the ground that the term
“concerted” in Section 7 must be read literally. The Su-
preme Court reversed the Sixth Circuit, finding that Sec-
tion 7 does not compel such a narrow and literal interpre-

4 The Board specifically referred to Ontario Knife Co. v. NLRB, 637
F.2d 840 (2d Cir. 1980); Krispy Kreme Doughnut Corp. v. NLRB, 635
F.2d 304 (4th Cir. 1980); and NLRB v. Dawson Cabinet Co., 566 F.2d
1079 (8th Cir. 1977).
5 Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985).
6 The court cited Eastex, Inc. v. NLRB, 437 U.S. 556 (1978); NLRB
v. J. Weingarten, 420 U.S. 251 (1975); and NLRB v. Washingtion Alu-
minum Co., 370 U.S. 9 (1962), as upholding a broad construction of
Sec. 7 in different contexts.
7 465 U.S. 822 (1984).
8 157 NLRB 1295 (1966), enfd. 388 F.2d 495 (2d Cir. 1967).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 138
tation of its language. The Court found that “[w]hat is
not self-evident from the language of the Act . . . is the
precise manner in which particular actions of an individ-
ual employee must be linked to the actions of fellow em-
ployees in order to permit it to be said that the individual
is engaged in concerted activity.”9 Finding that Section 7
was subject to varying interpretations, the Court upheld
the Board’s Interboro doctrine as a reasonable interpreta-
tion of the Act. The Court concluded that “[t]he invoca-
tion of a right rooted in a collective-bargaining agree-
ment is unquestionably an integral part of the process
that gave rise to the agreement. That process . . . is a sin-
gle, collective activity.”10
Relying on the Supreme Court’s broad construction of
Section 7 in City Disposal, the D.C. Circuit found that
the Board erred in Meyers I in finding that its restrictive
interpretation of concerted activity was mandated by the
Act. The court also questioned the Board’s reliance on
judicial decisions rejecting Alleluia. It noted that many of
these cases relied on reasoning that disapproved all forms
of constructive concerted activity, including the Inter-
boro doctrine, and thus did not survive City Disposal.11
The court further noted that other judicial decisions re-
jecting Alleluia involved individual complaints about job
conditions that were not based on occupational safety or
other statutory rights.12 Concluding that neither the lan-
guage or legislative history of Section 7 nor Supreme
Court or other judicial decisions compelled the Meyers I
definition of concerted activity, the court remanded the
case to the Board for reconsideration of its position.
2. The Second Circuit. In Ewing v. NLRB,13 the Sec-
ond Circuit was also presented with the Meyers I theory
of concerted activity. There, the Board dismissed a com-
plaint alleging that the employer refused to rehire an em-
ployee after a layoff in the mistaken belief that he had
filed a complaint with the Occupational Safety and
Health Administration. The Board relied on Meyers I to
find that the individual assertion of a statutory employ-
ment right did not constitute concerted activity.
Citing the D.C. Circuit’s decision in Prill I, the Second
Circuit found that the Meyers I interpretation of con-
certed activity was not mandated by the Act. The court
also gave further rationale for finding that the Meyers I
approach was not compelled by the Act. It suggested that
the Alleluia presumption that other employees support
the individual assertion of a statutory employment right
was reasonable. Said the court:

9 465 U.S. at 831.
10 Id.
11 The court pointed to Jim Causley Pontiac v. NLRB, 620 F.2d 122
(6th Cir. 1980); NLRB v. Bighorn Beverage, 614 F.2d 1238 (9th Cir.
1980); NLRB v. Dawson Cabinet Co., 566 F.2d 1079 (8th Cir. 1977);
and NLRB v. Buddies Supermarkets, Inc., 481 F.2d 714 (5th Cir. 1973).
12 The court pointed to Ontario Knife Co. v. NLRB, 637 F.2d 840 (2d
Cir. 1980); and Pelton Casteel, Inc. v. NLRB, 627 F.2d 23 (7th Cir.
1980).
13 768 F.2d 51 (2d Cir. 1985).

The validity of that presumption “depends upon the ra-
tionality between what is proved and what is inferred.”
Republic Aviation Corp. v. NLRB, 324 U.S. 793, 805
(1945). Group support may rationally be assumed, ab-
sent evidence to the contrary, because fellow employ-
ees presumably want to be free to assert such a right
without fear of losing their jobs. [Id. at 55.]
The Rationale of Meyers II
The Meyers II Board adhered to the restrictive defini-
tion of concerted activity set out in Meyers I. No longer
asserting that this definition was mandated by the Act,
the Board found that it was the definition most respon-
sive to the central purposes of the Act. The Board looked
to Supreme Court decisions emphasizing the Act’s
unique protection for joint employee action such as
NLRB v. Jones & Laughlin Steel Corp.,14 stressing the
importance of unionization to enable employees to deal
on an equal basis with their employer; and Metropolitan
Life Insurance. Co. v. Massachusetts,15 emphasizing the
difference between minimum-labor-standard laws which
apply to all employees and the NLRA which protects
collective bargaining. Given this emphasis on group ac-
tion, the Board found it appropriate to require some link-
age to group action in order for conduct to be deemed
concerted under Section 7.
The Board also found that the Meyers I definition of
concerted activity was consistent with City Disposal. The
Board noted the Court’s emphasis on the assertion of
rights under the collective-bargaining agreement as part
of a single collective activity. The Board also stated that:

It was recognized that the actions of the individual em-
ployee engaged in concerted activity might be remote
in time and place from group action but, at some point,
there would be an outer limit to concerted activity in
order to be faithful to the collective-action component
of Section 7. [Citations omitted.]

Finally, the Board found that no linkages to concerted
activity could be found in a single employee’s invocation
of a statute enacted for the protection of employees gen-
erally. The Board concluded that the only concerted ac-
tivity involved in the enactment of statutes was the activ-
ity of the legislators and the lobbying process. This activ-
ity, however, was not generated by employees and was
too remotely related to the activities of employees in the
workplace to come within the protection of Section 7. As
to whether policy considerations should lead the Board
nevertheless to protect such attenuated activity because it
is aimed at securing compliance with other work-related
statutes, the Board found that it “was not intended to be a
forum in which to rectify all the injustices of the work-
place.”16
14 301 U.S. 1 (1937).
15 106 S.Ct. 2380 (1985).
16 Meyers II, supra at 888.
PIKES PEAK PAIN PROGRAM 139
Court Response to the Meyers II Decision
1. The D.C. Circuit. The court affirmed the Board’s
judgment, finding that the rationale given in Meyers II
was a reasonable interpretation of Section 7 of the Act.17
As the court had noted in its earlier decision remanding
Meyers I, its scope of review of Board decisions is lim-
ited; it may not second-guess lawful judgments.18 De-
spite its deferral to the Board’s discretion and expertise,
the court made clear that its approval of Meyers II was
based solely on the finding that it was a reasonable inter-
pretation of Section 7 that did not exclude the possibility
of other reasonable interpretations. The court stated:

By requiring that workers actually band together, the
NLRB has adopted a reasonable—but by no means the
only reasonable—interpretation of Section 7. [Empha-
sis added.]19

Similarly, in concluding that the Meyers II rejection of
Alleluia was not inconsistent with City Disposal, the
court stated:

The Supreme Court simply recognized that a worker’s
actions are concerted when tied to the actions of his fel-
low employees, and in City Disposal, the collective
bargaining agreement itself provided the bond between
one worker and another. City Disposal neither re-
quired nor precluded treating workplace-related statu-
tory rights as establishing without more the necessary
bond among workers.20 [Emphasis added.]

To be sure, the D.C. Circuit approved the Meyers II
definition of concerted activity as a proper exercise of the
Board’s broad authority to interpret the Act. At the same
time, however, it clearly indicated that the Alleluia doc-
trine of implied concerted activity was also a reasonable
interpretation of Section 7. It cleared the way for a return
to Alleluia by a future Board.
2. The Second Circuit. As noted earlier, the court in
its remand affirmatively suggested that it would be rea-
sonable to find that the individual assertion of a statutory
employment right was protected under Section 7. The
Board rejected that suggestion and adhered to its dis-
missal of the complaint, relying on the rationale of Mey-
ers II. Again, going farther than the D.C. Circuit, the
court stated:

The Board’s conclusion that a single employee’s invo-
cation of a statutory employment right is not “concerted
activit[y]” under Section 7 is not, in our view, prefer-
able. Nevertheless, we reluctantly conclude that the
Board has offered a reasonable interpretation of the
Act.21

17 Prill II, supra at 1481.
18 Prill I, supra at 942.
19 Prill II, supra at 1484.
20 Id. at 1484–1485.
21 Ewing v. NLRB, 861 F.2d 353, 355 (2d Cir. 1988).
Agreeing with the D.C. Circuit’s analysis that the Act
“could be read to support either the Alleluia or Meyers
interpretation of concerted activity,” the court held the
Meyers definition of concerted activity to be a reasonable
construction of the Act.22
The court, however, was clearly uneasy with the Mey-
ers II restrictive approach to Section 7. Agreeing with the
D.C. Circuit, the court found that City Disposal did not
require the Meyers II view of concerted activity. The
court stated:

The conclusion that individual invocation of
statutory rights bears little relation to the collective
process at the core of the Act is not the only reading
of the NLRA. Statutory rights form the fabric upon
which employees weave the pattern of their collec-
tive-bargaining agreement. The NLRB, citing City
Disposal, noted that this process begins when a un-
ion is formed and continues during negotiation. It
might have also viewed the procedure more compre-
hensively. A labor-management agreement is not
written on a tabula rasa; rather, it is created against
the background of a panoply of statutory employ-
ment rights. Employees, conscious of the milieu in
which they decide to organize and bargain, rely on
the availability of the enacted rights they already
possess.23

The Meyers II approach focused on the limiting aspects of
City Disposal. The court found that it would have been
equally plausible to find that City Disposal presents “a
broad vision of the ‘integral aspect[s] of . . . [the] collective
process.’”24
The Second Circuit clearly indicated that it would have
adopted the Alleluia approach, had it the authority to do
so. The court stated:

Were we considering the question de novo, we might
have considered the opposite view more in keeping
with the spirit and purpose of the NLRA. . . . The vast
majority of American employees are not unionized.
They do not work under the protections a collective
bargaining agreement affords. Statutory employment
rights provide the only protection they have against the
arbitrary power of their employer. As it stands, the
NLRB’s interpretation of Section 7 would allow man-
agement to discharge or otherwise discipline an indi-
22 Member Hurtgen notes that Meyers represents a permissible read-
ing of the Act that no court has overturned in the past 14 years. It
should be no surprise that a court has not overturned Meyers. The scope
of court review is limited to whether the Board’s interpretation of the
Act is reasonable and therefore permissible. A permissible interpreta-
tion is quite different, however, from a preferable interpretation. The
Second Circuit indicated that Alleluia was not only a reasonable inter-
pretation of the Act but also the preferable interpretation. The court
suggested that it would have overturned Meyers had its scope of review
allowed it to decide the issue de novo.
23 Id. at 360.
24 Id., citing City Disposal, 465 U.S. at 835.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 140
vidual worker for exercising statutory employment
rights. [Id. at 359, footnote omitted.]

In affirming Meyers II as a reasonable interpretation of
concerted activity, the court somewhat unhappily did its
duty: “[I]f reasonable, we must take the Board’s views as
we find them, not as we might like them to be.”25
Concluding Analysis
The review of the rationales of Alleluia and Meyers II
and the courts’ response shows that neither the language
or history of the Act nor Supreme Court decisions com-
pel only one theory of concerted activity. In this regard,
the Supreme Court teaches that the rights guaranteed in
Section 7 are protected “not for their own sake but as
instruments of national labor policy.”26 In my view, the
demands of national labor policy vastly favor the Alleluia
theory of concerted activity.
First, I note that although the legislative history is si-
lent as to the precise meaning of “concerted activities” in
Section 7, the use of the term “concert” in the evolution
of labor law in this country indicates that its use in the
Act was intended to expand employee rights. The term
first appeared in legislation designed to shield organized
labor from the criminal conspiracy doctrine and the in-
junctive power of the courts.27 In light of this history, it is
proper and preferable to infer that the use of “concerted”
in the Act was intended to assure that what was lawful
activity by one employee, was not unlawful because
other employees joined it:

The assumption of the Act was not that action which
should be protected when engaged in by a group should
be left unprotected when engaged in by an individual,
but that lawful individual action should not become
unlawful when engaged in collectively. [Footnote omit-
ted.]28

This interpretation of Section 7 has been supported by
other commentators29 and is, in my judgment, the best
view of the meaning of “concerted activity.”
Second, the Alleluia approach places the Board in its
proper role of protecting employees who attempt to im-
prove their working conditions and accommodating other
labor laws in administering the Act. One of the great
criticisms of Alleluia is that it arrogates too much re-
sponsibility to the Board. I do not subscribe to this view.

25 Id. at 361.
26 Emporium Capwell Co. v. Western Addition Community Organi-
zation, 420 U.S. 50, 62 (1975).
27 See Gorman & Finkin, The Individual and the Requirement of
“Concert” Under the National Labor Relations Act, 130 U. Pa. L. Rev.
286 (1981).
28 Id. at 336.
29 See, e.g., Lynd, The Right to Engage in Concerted Activity After
Union Recognition: A Study of the Legislative History, 50 Ind. L.J. 720,
726–734 (1975), and Note, Individual Rights for Organized and Unor-
ganized Employees Under the Nation Labor Relations Act, 58 Tex. L.
Rev. 991, 1006–1008 (1980).
The Meyers II Board recognized that the Board had a
duty to construe the labor laws so as to accommodate the
purposes of other Federal laws, but held that such a duty
was quite different from: “taking it upon ourselves to
assist in the enforcement of other statutes. The Board
was not intended to be a forum in which to rectify all the
injustices of the workplace.”30 This is an erroneous view
of the purpose of Alleluia. Of course, the Board should
not be in the business of enforcing other statutes, Federal
or state. The Alleluia interpretation of concerted action,
however, does not involve enforcing statutes. It merely
assures that employees will not be discharged or disci-
plined by their employers for their individual attempts to
secure enforcement of statutes governing the workplace.
While it may be true that some work-related statutes
contain provisions against retaliation, not all do. One of
the central purposes of the Act, which sets it apart from
other legislation, is that it protects employees who at-
tempt to improve their working conditions. It, therefore,
is reasonable for the Board to fulfill its duty of accom-
modating other labor laws by protecting an employee
who asserts work-related statutory rights designed to
improve working conditions.
This role is particularly critical now when so large a
percentage of the employees covered by the Act do not
have a collective-bargaining representative or the protec-
tions of a collective-bargaining agreement. For such un-
organized employees, the assertion of work-related statu-
tory rights, as the Second Circuit emphasized, is one of
the only means they have to oppose the economic power
of their employers. See also Gould, Estes, Rudy, Wise,
Hay & McClain, To Strike a New Balance: A Report of
the Ad hoc Committee on Termination at Will and
Wrongful Discharge, Labor and Employment Law News,
State Bar of California (1984); Note, Uniform Law
Commissioners’ Model Employment Termination Act
Drafted by the National Conference of Commissioners
on Uniform State Laws (1991); Bellace, A Right to Fair
Dismissal: Enforcing a Statutory Guarantee, 16 U. Mich.
J.L. Rev. 207 (1983); Dertouzos, Holland & Ebener, The
Legal and Economic Consequences of Wrongful Termi-
nation, RAND Institute for Civil Justice (1988); Glendon
& Lev, Changes in the Bonding of the Employment Rela-
tionship: An Essay on the New Property, 20 Boston Col-
lege L. Rev. 457 (1979); W. B. Gould, The Idea of the
Job as Property in Contemporary America: The Legal
and Collective Bargaining Framework, 1986 Brigham
Young University L. Rev. 885; W. B. Gould, Stemming
the Wrongful Discharge Tide: A Case for Arbitration, 13
Employee Relations L.J. 404 (1987–1988); W. B. Gould,
Protection From Wrongful Dismissal, N.Y. Times (Oct.
22, 1984); P. Kim, Bargaining with Imperfect Informa-
tion: A Study of Worker Perceptions of Legal Protection
in an At-Will World, 83 Cornell L. Rev. 105 (1997);
30 Meyers II, supra at 888.
PIKES PEAK PAIN PROGRAM 141
Miller & Estes, Recent Judicial Limitations on the Right
to Discharge: A California Trilogy, 16 U.C. Davis L.
Rev. 65 (1982). Note, Implied Contract Rights to Job
Security, 26 Stan. L. Rev. 335 (1974). To read Section 7
so narrowly as to exclude individual employees who as-
sert such important collective rights when such a reading
is purely a matter of policy, does a great disservice to
vast numbers of employees who do not have collective-
bargaining representatives and who must otherwise de-
pend on the happenstance of whether a retaliatory provi-
sion is included in the statute they assert.
A narrow reading of Section 7 also creates an unneces-
sary gulf between represented and unrepresented em-
ployees. The D.C. Circuit warned against such a result in
its remand to the Board upon review of Meyers I:

[T]he Board’s decision in Meyers produces the anom-
aly that a unionized worker who complains about
safety or other matters covered by a collective-
bargaining agreement will be held protected under In-
terboro and City Disposal, while an unorganized em-
ployee will be denied protection for engaging in identi-
cal conduct. We agree with the Board that its responsi-
bility is to apply the National Labor Relations Act and
not to enforce all state and federal law. This does not
mean, however, that with respect to matters within its
discretion, the Board should ignore the policy implica-
tions of its decisions. [Prill v. NLRB, 755 F.2d at 957.]

In my view, it is neither necessary nor desirable to al-
low the determination of whether an employee’s action is
protected by the Act to turn on whether the employee
asserts a right covered by a collective-bargaining agree-
ment or a right covered by a work-related statute. There
is a strong parallel between the assertions of these rights.
In both cases, the right asserted is not an individual right,
but one that is created expressly for employees in the
workplace. In both cases, there is reason to believe that
the assertion of the right by an individual employee is at
heart a concerted act, consented to by other employees.
True, the reasons for implying consent are different. In
the case of the collective-bargaining agreement, the
agreement itself is the result of concerted activity by em-
ployees in the workplace where the right is asserted. As
the Supreme Court found in City Disposal, the assertion
of the right covered by the collective-bargaining agree-
ment is part of the process which gave rise to the agree-
ment. In the case of the statutory work-related right, the
right is created in the public interest for the benefit of
employees in the workplace. It is reasonable to presume
that other employees consent to the assertion of a right
collectively benefiting them. Indeed, as the Alleluia
Board found, it is inconsistent with the public policies
establishing the statutory rights to presume that employ-
ees do not support the assertion of the right simply be-
cause there is no outward manifestation of group support.
Further, I agree with the Second Circuit’s view that statu-
tory employment rights form part of the fabric of work-
place which provides the background against which any
organizing and collective bargaining must occur. The
same is true of the judicially fashioned common law em-
ployment rights in areas like wrongful discharge. All of
these rights are, therefore, not isolated from the collec-
tive-bargaining process.
Finally, the simplicity of analysis in Alleluia and more
efficient use of the Board’s resources are major policy
considerations favoring the abandonment of Meyers II.
Under the Alleluia approach, the initial inquiry is con-
fined to whether an individual employee asserted a work-
related statutory right and suffered discharge or disci-
pline in retaliation. In contrast, the Meyers II approach
requires a complex, often convoluted analysis when col-
lective rights are asserted by an individual employee.
Thus, it must be determined whether the employee’s ac-
tion was authorized by other employees,31 generally re-
lied upon in some way by at least one employee,32 or was
engaged in with the object of initiating or inducing or
preparing for group action or had some relation to group
action.33 An inquiry of such complexity necessarily in-
creases the Board’s expenditure of resources on wasteful
litigation.34 It also places an undue burden on unsophisti-
cated, unorganized employees. Whether such an em-
ployee’s individual assertion of a collective right is pro-
tected depends on how and to whom the employee as-
serts the right. Employees who do not have a representa-
tive and who, in an unorganized setting, may be hesitant
to involve themselves in open calls for group action
should not be required to engage in such sophisticated or
formalistic maneuvers to be shielded from discharge for
asserting a right granted by statute to all employees in the
workplace.35 Again, the attempt by employees to show
that they have gone through the proper hoops and had the
appropriate discussions and communications demonstrat-

31 Allied Erecting Co., 270 NLRB 277 (1984).
32 Walter Brucker & Co., 273 NLRB 1306 (1984).
33 Mushroom Transportation Co. v. NLRB, 330 F.2d 683 (3d Cir.
1964).
34 See my dissent in Flint Iceland Arena, 325 NLRB 318 (1998),
where I also urge the diminishment of potentially wasteful litigation
within the context of non-Board settlements. Illustrative of a decision
which substantially diminished litigation through its broad and clear
mechanical rule relating to jurisdiction was Management Training, 317
NLRB 1355 (1995). The doctrine in Management Training has been
approved in Teledyne Economic Development v. NLRB, 108 F.3d 56
(4th Cir. 1997), and in Pikeville United Methodist Hospital. v. NLRB,
109 F.3d 1146 (6th Cir. 1997), where we asserted jurisdiction over
private employers. Consistent with this view, I have also advocated that
the promotion of voluntary recognition agreements in order to avoid
unnecessary litigation. See Smith’s Food & Drug Centers, 320 NLRB
844, 847–848 (1996) (Gould, W., concurring). The Board has con-
curred with this approach in its promotion of settlement agreements
negotiated where a decertification petition has been filed and an incum-
bent union has an established relationship with the employer. Douglas-
Randall, Inc., 320 NLRB 431 (1995).
35 See W. B. Gould, Recent Developments Under the National Labor
Relations Act: The Board and the Circuit Courts, 14 U.C. Davis L.
Rev. 497, 513–519 (1981).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 142
ing that more than one employee is involved, unnecessar-
ily produces burdensome and wasteful litigation where,
when the subject matter in dispute clearly involves all
employees, this elongated and torturous process is not
necessary.
Viewed against the history of the term “concert,” the
simplicity of analysis which avoids formalistic games-
manship so detrimental to unorganized employees, the
reduction of issues for litigation, the recognition of the
collective nature of work-related statutes, and the ac-
commodation of other labor laws through the protection
of an employee’s right to assert those laws compel the
finding that Alleluia is far more in keeping with the spirit
and purpose of the Act.

MEMBER HURTGEN, concurring.
My dissenting colleague would overrule the extant law
of Meyers, and would hold that an individual employee
engages in concerted activity even if he acts alone in
pursuing a personal claim before a state agency. I would
adhere to Meyers, and I would hold that the aforemen-
tioned activity is not concerted.
The reasons for my view are set forth in Meyers itself,
and there is no need to repeat them here. However, I do
wish to make three additional observations.
First, my colleague concedes, as he must, that Meyers
represents a permissible reading of the Act. Further, it
has been on the books for 14 years, and no court has
overturned it.1 In the interests of stability and predictabil-
ity, I see no warrant for upsetting precedent, absent a
compelling need to do so. There is no such need here.
Second, to the extent that individual employees have
been discharged in reprisal for their resort to state or
Federal agencies, it would appear that those agencies
themselves would have the primary responsibility for
protecting access to their own processes. At least in the
absence of a showing that significant numbers of agen-
cies do not afford such protection, I see no need for Fed-
eral (NLRB) intrusion in this area.
Finally, I disagree that Meyers creates a situation in
which unorganized employees are unprotected while
organized employees are protected. Unorganized em-
ployees have a Section 7 right to engage in concerted
activity, just as union organized employees do. In addi-
tion, nonunion employees have a Section 7 right to re-
main nonunion, and they will still enjoy their Section 7
right to engage in concerted activity. However, neither a
unionized employee nor a nonunionized employee en-
gages in concerted activity when that employee simply
goes to a state agency. City Disposal2 is not to the con-
trary. In that case, the employee invoked the collective-

1 My colleague does not dispute this point. He simply refers to one
court that suggested that it would have made a different policy choice.
However, even that court was quick to add that the policy choice is for
the Board to make.
2 465 U.S. 822.
bargaining agreement, i.e., the fruition of the Section 7
effort of unit employees to achieve a union contract.
Such activity is concerted. By contrast, in the instant
case, the employee went to a state agency. I am unwilling
to say that this activity is the same as that in City Dis-
posal.

Michael Cooperman, Esq., for the General Counsel.
Barbara Weil Gall and Dawn Leporati, Esqs. (Sherman &
Howard), of Denver, Colorado, for the Respondent.
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge. I heard
this case in Denver, Colorado, on February 6–8, 1997, pursu-
ant to a complaint and notice of hearing issued by the Regional
Director of Region 27 of the National Labor Relations Board
on April 30, 1996. The complaint is based on a charge in Case
27–CA–14384 filed on March 14, 1996, by Kim McKeon, an
individual (the Charging Party), against Myth, Inc. d/b/a Pikes
Peak Pain Program (the Respondent). Posthearing briefs were
due on March 12, 1997.
The complaint alleges and the answer denies that McKeon
was: (1) warned on February 2, 1996; (2) work hours were
reduced in on February 21, 1996; and (3) discharged on March
7, 1996, all because of her protected concerted activities in
violation of Section 8(a)(1) of the National labor Relations Act
(the Act).
All parties were given full opportunity to participate at the
hearing, to introduce relevant evidence, to call, examine, and
cross-examine witnesses, to argue orally, and to file posthear-
ing briefs.
On the entire record here, including helpful briefs from the
General Counsel and the Respondent and from my observation
of the witnesses and their demeanor, I make the following
FINDINGS OF FACT1
I. JURISDICTION
At all material times the Respondent, a Colorado corporation
with a clinic and place of business in Colorado Springs, Colo-
rado (the Clinic), has been engaged in the operation of a clinic
devoted to the relief of chronic pain. At all relevant times, the
Respondent has annually enjoyed revenues in excess of
$250,000 and during the same periods purchased and received
at its Clinic goods valued in excess of $10,000 directly from
enterprises within the State of Colorado, which are engaged in
interstate commerce.
The complaint alleges, the answer admits, and based on the
commerce facts set forth above I find that the Respondent is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
1 As a result of the pleadings and the stipulations of counsel at the
trial, there were few disputes of fact regarding collateral matters.
Where not otherwise noted, the findings here are based on the plead-
ings, the stipulations of counsel, or unchallenged credible evidence.
PIKES PEAK PAIN PROGRAM 143
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent was established in June 1994 as a clinic
providing specialized care and training for patients with long-
standing and chronic pain. The Clinic offers an interdiscipli-
nary team approach and utilizes physical, occupational, and
recreational therapists and others in a comprehensive program.
At relevant times, Susan Hayes has been the Respondent’s
chief executive officer, Dr. John Tyler, the Clinic’s medical
director, and Dr. Kevin Murphy, its psychologist. All are part
owners of the Respondent. These individuals were involved in
establishing the Clinic and in doing so drew from the staff of
another health care institution in the area for its starting em-
ployees. One of the employees invited to join the Clinic at its
inception was the Charging Party who had worked with Hayes
at the other institution. At relevant times McKeon was a exer-
cise physiologist at the Clinic. Lee Carman was hired in June
1995 as a physical therapist and was promoted to manager of
therapeutic services in October 1995. As manager of therapeu-
tic services, Carman became responsible for the direct supervi-
sion of the Clinic’s physical therapists, massage therapists, and
exercise physiologists, including the Charging Party.
At relevant times, the Respondent has provided wages or
salaries and certain fringe benefits to its employees. A portion
of the employees’ fringe benefits were paid for, in whole or in
part, by the employees in the form of payroll deductions from
their earned wages or salary. One aspect of the Respondent’s
employee compensation system was the issuing of “benefit
dollars” to employees. These “benefit dollars” were a fixed
number of dollars above and beyond the normal employee
wage or salary issued to each employee each month, which
could be allocated by the receiving employee to pay the em-
ployee’s portion of fringe benefit costs or, in the alternative, to
be paid directly to the employee.
B. Evidence
1. The Charging Party’s telephone call to the Respondent’s
insurance carrier
In September 1995, during the period preceding the expira-
tion of its then-existing employee insurance plan, the Clinic
added to its employee benefits a new short-term/long-term
employee disability benefits plan (the Plan). The Plan was in
addition to the Clinic’s other employee insurance coverage.
Using its insurance agent, Daniel Nowels, the Respondent en-
tered into an agreement with an insurance underwriter, UNUM
Life Insurance (UNUM), to provide the Plan to eligible em-
ployees.
In November 1995, Hayes and Nowels explained to employ-
ees how the Plan was to operate. The premium for the Plan
was to be employer paid, but the covered employees would
have their “benefit dollars” reduced by the amount of the pre-
miums paid by the Clinic for the coverage. The assertion that
the Plan was to be paid for by the Employer coupled with the
seemingly inconsistent fact that the employees would have their
“benefit dollars” reduced in amount equal to the premium
caused a certain confusion among employees respecting who
was paying for the coverage which persisted over time despite
the repeated explanations of the Respondent. The employee
questions and confusion continued even after Plan pamphlets
were distributed in early January 19962 and a second employee
meeting was held on January 9 to explain the Plan and how
individual employee coverage was paid for.
Hayes testified that although virtually the entire staff had
questions at the Tuesday, January 9 meeting, which were an-
swered by management as best as possible, none of the em-
ployees raised further questions with her thereafter and she
therefore assumed the matter had been resolved in all the em-
ployees’ minds by Friday, January 12, her last day of work
before commencing a vacation. Such was not in fact the case
however.
McKeon testified that she remained confused by the seeming
contradiction that the Plan was specifically designated as em-
ployer paid, yet employees were having their “benefit dollars”
reduced by the cost of the Plan’s coverage. She talked with her
fellow employees and they too remained confused by the ap-
parent contradiction. Employee Margaret Jane Andrews testi-
fied that in the Clinic employee room on January 18 either
McKeon or Carman or both announced to the other employees
that they were going to call the insurance carrier with their
questions about the Plan.
Later that day, on January 18 during Hayes’ absence on va-
cation, McKeon and Manager of Therapeutic Services Carman,
after several attempts, placed a telephone call from the Clinic to
UNUM and, using the speaker phone in the employee area of
the Clinic, spoke to Kathy Bowles at UNUM about their ques-
tions and confusions.
The Charging Party described the conversation:

My questions to [Bowles were] that I had reviewed the
policy, that it stated in the policy that the short-term and
long-term disability was Employer-paid, and I called to
ask her what that meant and if that was the case, then why
was our paycheck being deducted for the amount to the
short-term, long-term disability to pay for that?
Q. And what did she say to you?
A. She just explained that the policy was noncontribu-
tory, which meant that it was Employer-paid. No enroll-
ment forms needed to be signed by employees because it
was paid 100 percent by the Employer. And once again,
I—you know, I questioned if that was the case, then why
were our paychecks being reduced as in previous team
meeting discussions to help pay for—to pay for short-
term, long-term disability.
Q. And did she give you an answer?
A. No. She had no answer. I mean, this was new to
her also.
Q. Okay. How did the conversation get left?
A. I know that Lee had asked questions that he had. I
don’t recall what they were, but it ended up that, Okay—
thank you, and left it at that.

Immediately following the call, Carman, McKeon, and at least
one other employee discussed the matter and determined it
would be best simply to await Hayes’ return from vacation and
raise questions with her at that time. That same day other em-
ployees were informed of the conversation.
Thereafter, Bowles telephoned Nowels, reported her conver-
sation with McKeon and Carman, and asked for information
regarding the circumstances of the Clinic’s insurance. Nowels
attempted to reach Hayes but, learning she was on vacation,

2 Unless otherwise noted all dates refer 1996.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 144
called McKeon at the Clinic. Nowels reached Carman and
McKeon by telephone, inquired as to what had transpired and
reviewed the situation with them attempting to explain the
terms of the policy and its payment.
Hayes returned to work from her vacation on Monday, Janu-
ary 22, and received telephone calls from both UNUM and
Nowels respecting the above-described events. Nowels indi-
cated to Hayes there was some seriousness in the matter be-
cause it was his belief that if UNUM concluded the policy was
not in fact Clinic—as opposed to employee—paid, the Clinic’s
disability insurance coverage would be canceled.
Hayes testified that, in speaking to UNUM and Nowels, she
was able to clarify the matter to their satisfaction, so that the
policy was not in jeopardy. She was not happy with her em-
ployees’ action in causing the difficulty however. She testified
she was:

[P]retty devastated. I felt that the staff had almost like kind of
gone behind my back to find out answers which, one, I tried
to explain to them. Two, I felt this was something that I was
trying to give to them just as an extra benefit and to say thank
you very much for all of the hard work that they have done,
and I felt like it just slapped me in the face.

Hayes added that she wanted to talk to McKeon and Carman
together about the matter that day, but their schedules and her
schedule did not allow such a meeting and before she could
arrange for a meeting the day had passed and the following
day’s regular weekly staff meeting was upon her.
Hayes conducted the January 23 staff meeting and at the
conclusion of its structured portion, she described events:

[W]hen I open up the agendas, I ask if there’s any other items
that need to be discussed, and at the bottom of the agendas
you will normally see spaces to put that. [McKeon] asked to
put in short-term/long-term disability. I stated I would like to
talk with her and Lee [Carman] and Kevin [Murphy] after the
meeting. She did not leave it at that, she came back to me in a
very determined type of voice that said: “I want to know why
we cannot talk about this at this meeting; this is an employee
issue and I would like for us to talk about it here.” And I very
sternly said at that point: “I will talk with you and Lee and
Kevin after this meeting.”
She came back one more time in the stern voice of
stating to me: “I would like to talk about it now.” And I
looked at her very, very sternly—and I don’t do this nor-
mally in a team meeting—and I said, “Listen to what I
say; I will talk with you and Lee and Kevin after this
meeting regarding this.”

McKeon recalled that Hayes’ responses to her in the meeting
were very atypical in being both angry and harsh. Andrews
testified that Hayes’ reaction to McKeon’s request was suffi-
ciently unusual to bring looks of surprise to the attending staff
and caused whispering by the staff among themselves followed
by Hayes’ comments to McKeon.
Hayes and Dr. Murphy3 met with McKeon and Carman im-
mediately after this meeting. Hayes explained to the two her
desire not to discuss the matter at a staff meeting:

3 Hayes testified she included Murphy in the meeting because
McKeon had seemed upset when Hayes told her in the meeting that the
matter would be discussed later and Murphy was both a skilled facilita-
tor and her counterpart on the clinical side.
I needed to have both sides of a story before I was going to
address that in front of a team. I informed them that I felt like
I was being attacked in that meeting regarding these issues
and that I was not going to discuss it at that point; now tell me
what happened so that we can resolve it and I can tell you
then what I was told too so you understand where I came
from.

Hayes asked about the phone call by McKeon and Carman to
UNUM and explained the Respondent’s views on the policy
and the payment. McKeon continued to hold to her view that
the fact employees’ “dollar benefits” were reduced to pay for
the policy indicated to her that the coverage was not, in fact,
employer paid, but the meeting ended without any discipline or
other action against either McKeon or Carman.
2. The charge with the Colorado State Department of Labor
Consistent with normal procedure McKeon received her
paycheck dated February 7, 1996, for the payroll period ending
January 29. The check was not for the normal sum and the pay
stub indicated that her hours worked were fewer than normal.
McKeon sent a memo to Hayes concerning the check, the body
of which asserted:

In reviewing my pay check, it appears there has been
a mistake as the total hours shown for this is 82.67 hours
as opposed to the usual salary pay period hours of 86.67.
Could you please explain this discrepancy. Thank-you.

McKeon visited the Colorado State Department of Labor on
February 16 to inquire about the pay matter, but was unable to
speak to an investigator.
In a memo dated February 19, Hayes responded to
McKeon’s request for information as follows:

Enclosed is a copy of your time sheet which shows you were
sick on January 18, 1996. You were absent for the entire day
8 hours and you do not have PTO available to cover. I did
take into consideration that on Sunday you came into the of-
fice and worked four (4) hours. Therefore I only docked you
four (4) hours for the January 18th day instead of eight (8)
hours.

On February 20, McKeon met with Joe Herrera, a compli-
ance investigator with the Colorado State Department of Labor,
and filed a state wage claim against the Clinic respecting the 4
hours of “docked” pay.
Herrera testified he spoke to Hayes by telephone on the af-
ternoon of February 21 about McKeon’s claim and the state
regulations he believed applied to the matter. Hayes told him
she would take up the matter with her personnel and human
resources advisor. Hayes recalled that Herrera called at about 2
p.m. and told her of McKeon’s wage claim and further told her
that the docking of McKeon’s hours was improper.4 She re-
members telling him that she would have HRC, a firm handling
the Clinic’s human resources, deal with the matter. She testi-
fied she “couldn’t believe that [McKeon] . . . had called the
Labor Board on this, on the issue of the hours when I felt that I
had [given] her a nice explanation of the reason why I had done
it.”
Later that day an agent of HRC, on the Respondent’s behalf,
contacted Herrera and told him an error had been made and that
4 The position of Herrera as conveyed to Hayes was that McKeon
was a salaried employee whose salary could not be properly docked in
the circumstances presented.
PIKES PEAK PAIN PROGRAM 145
the claim would be paid. The claim was in fact paid, with the
Colorado State Department of Labor noting the receipt of pay-
ment on February 26 and thereafter closing the file.
3. The reduction in the Charging Party’s hours of work
Hayes testified that she always had a high opinion of
McKeon’s professional skills. She noted, however, that her
own direction of employees had been quite informal and, with
the assumption by Carman of the position of manager of thera-
peutic services in October 1995, he began to more formally
structure work for the staff under his direction. The revamped
and tightened schedules and arrangements initiated by Carman,
in Hayes view, placed greater responsibility on staff, including
McKeon, to manage and account for their time.
Hayes testified that McKeon had difficulty adjusting to these
changes and that the previous friendly and informal relationship
between the two of them came under strain commencing about
October 1995. McKeon characterized the friendly relationship
between the two as ending on, and as a result of, the January 23
staff meeting rather than on earlier events and circumstances.
Hayes testified that in the fall of 1995 she received reports
from staff that McKeon was leaving the Clinic to go to ap-
pointments during the workday without providing adequate
notice to staff and was neither reporting her departures from the
Clinic nor her expected return times. Hayes testified that she
discussed these matters with McKeon informally at the time she
learned of the problem. McKeon testified that until the Febru-
ary 2 meeting, described below, Hayes had never criticized her
work nor raised attendance or reporting problems or the com-
plaints of staff.
Hayes testified that these problems reoccurred and on Febru-
ary 2 she called McKeon to a meeting with McKeon’s immedi-
ate supervisor, Carman, and with Murphy—whom she intended
to act as a facilitator—to discuss McKeon’s leaving the facility
without telling the receptionist where and for how long she
would be gone. Carman testified that he participated in the
meeting as McKeon’s supervisor and because he felt her work
was being affected by the absences.
At the meeting, these problems were raised with McKeon.
Hayes recalled that McKeon became angry that her appoint-
ments were being used as a basis of criticism, inasmuch as she
believed that Hayes well knew of them and thus had in effect
consented to and approved of her conduct. Hayes testified she
explained to McKeon that she had in fact known of McKeon’s
appointments, but not that they were becoming a problem for
scheduling patients, nor that there was a failure to let the staff
know where McKeon was or when she would return to the
Clinic. McKeon answered that she always informed the front
desk when she was leaving and when she would be back.
Hayes countered that McKeon’s assertions were not consistent
with the reports she was receiving from the front desk.
Hayes also suggested to McKeon that with excessive ap-
pointments, long lunch hours, and early afternoon departure
times, McKeon was not working a full week. Hayes also told
McKeon that if “her behaviors” continued she would be
changed from a salaried or full-time employee to an hourly or
part-time employee. Hayes testified, “My intent was: ‘You’re
paid for 40 hours a week, we’d like for you to work 40 hours a
week; if you continue to work approximately 30 hours a week,
then I’m going to pay you for 30 hours a week.”’ McKeon
recalled that she was threatened by Hayes at the meeting with
both a reclassification from salaried to hourly employee and
with a reduction from full- to half-time employment.
Hayes testified that in late 1995 and more specifically from
January 27 on, she, Lee Carman, and Kevin Murphy had been
discussing ways to reduce Clinic costs including the possible
reduction of employee hours. She testified to meeting on Feb-
ruary 20 with the two at which time they reviewed employees’
schedules in consideration of possible reductions in employee
hours. Hayes testified that at the meeting they determined to
cut McKeon’s hours from her current 8 to 3 hours per day.
Carman testified, without particularizing the dates, that he was
involved in evaluating employees’ hours with Hayes and Mur-
phy, and that he was aware McKeon’s hours were to be cut
before the February 21 meeting described below. Dr. Kevin
Murphy was also unable to recall specific dates, but testified
that he had spoken with Hayes and Carman in several meetings
before the February 21 meeting “concerning Kim’s hours and
the amount of time she was actually working, and what we
needed in the program in terms of her working, and whether
that was an efficient use of our resources.”
McKeon testified that shortly after 3 p.m. on February 21 she
injured her shoulder while working. Soon thereafter and before
she had reported her injury, she was summoned to a meeting in
Hayes’ office and there met with Hayes, Carman, and Murphy.
She was given a letter addressed to her dated February 21, the
text of which read in part:

In review of your schedule at Pikes Peak Pain Program the
majority of your work is between the hours of 8:00 am to
10:30 am. Therefore, we are rearranging your work schedule
to cover these sessions. Effective February 26, 1996 we
would like for your hours to be Monday thru Friday 8:00 am
to 11:00 am.

Hayes placed the meeting as occurring at 3:30 to 3:45 p.m. She
recalled that McKeon did not mention having injured herself
just before the meeting and learned of McKeon’s report of an
injury later that working day after the meeting.
McKeon reported her injury after the meeting and was there-
after referred to a regularly used physician by the Clinic, Dr.
Robert Pero, for evaluation of her injury. Dr. Kevin Murphy
telephoned Dr. Pero following the referral, but before
McKeon’s initial visit, and informed Pero that McKeon’s injury
was reported by her in the context of an adverse personnel ac-
tion, implying at the very least that Dr. Pero should view the
claim of injury by McKeon skeptically. In all events Dr. Pero
evaluated McKeon, diagnosed a shoulder strain, prescribed
physical therapy, and imposed temporary work restrictions
limiting lifting and forceful flexion.
McKeon testified that from February 21 through the meeting
on March 7, described below, she worked her new reduced
schedule while complying with the work restrictions set by Dr.
Pero. Carman, however, testified that he observed and/or re-
ceived reports concerning various failings of McKeon in the
days following February 21, namely; the undertaking of physi-
cal tasks prohibited by her work restrictions, reporting to work
late, and the unauthorized canceling of a patient session pur-
portedly because of her work limitations which, in Carman’s
view, were not in fact a limiting factor in the patient session.
Carman prepared an employee report of his perceived inade-
quacies in McKeon’s performance coupled with a list of re-
quirements that she must comply with to achieve satisfactory
performance. The report, formatted so that McKeon was to sign
it at the bottom in acknowledgment of its content with spaces
for witness signatures, asserted in part:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 146
I also acknowledge that failure to comply with any of the
above written requirements will result in the immediate dis-
missal from my position with Pikes Peak Pain Program.

On March 7, McKeon was summoned to a meeting attended by
Hayes, Murphy, and Carman. She brought a tape recorder to
the meeting and obtained permission to record the meeting
which she did. The recording of the meeting and a transcript of
it were placed in evidence.
Carman took the initial active role on behalf of the Clinic at
the meeting, telling McKeon that there had been “incidents”
and giving her the employee report described above. McKeon
and Carman engaged in a dialogue, with the other two generally
silent, concerning the various incidents set forth on the report
with McKeon disagreeing with the allegations or defending
herself in each instance. McKeon also took issue with Dr.
Murphy’s telephone call to Dr. Pero, described above, calling
it unethical and unprofessional on Murphy’s part to question
McKeon’s veracity in making the claim. McKeon’s defense in
her exchange with Carman was vigorous and she viewed the
criticisms of her as both incorrect and unjust. At one point
McKeon accused the Clinic of simply attempting to rely on any
little thing in its criticism of her, which characterization Hayes
disputed.5 The meeting ended when this exchange or debate
between McKeon and Carman was interrupted by Hayes who
told McKeon: “[T]his will be your last day today because we
will not tolerate this type of thing any more.” Following a brief
further exchange, the meeting ended. McKeon’s employment
with the Clinic was thereafter ended.
McKeon’s discharge was never withdrawn and she has not
been employed at the Clinic since. Following her discharge,
McKeon sought state unemployment compensation which was
granted following state consideration of the circumstances of
her discharge.
C. Analysis and Conclusions
1. Arguments of the parties
The General Counsel argues that McKeon engaged in three
separate actions, each of which were protected under the Act:
(1) her telephone call to UNUM; (2) her requests to Hayes to
discuss the insurance matter at the staff meeting and; and (3)
her filing of her Colorado State Department of Labor salary
claim. The General Counsel argues further that these protected
activities were the cause of the Respondent’s warning of
McKeon, the Clinic’s reduction in her work hours and its sub-
sequent discharge of McKeon. Thus, the General Counsel ar-
gues that the Respondent in warning McKeon, reducing her
hours, and in discharging her, all because of her protected
activities, violated Section 8(a)(1) of the Act as alleged in the
complaint.
The Respondent contests each of the General Counsel’s ar-
guments. First, the Respondent argues that McKeon’s actions
on each of the three occasions raised by the General Counsel
were individual actions without the legal concert necessary
under current law to cloak McKeon’s actions with protection
under the Act. Second, the Respondent argues that, irrespec-
tive of whether McKeon’s activities were protected, she was
not warned, work were not reduced, nor terminated for those
activities. Rather, argues the Respondent, the warning, the

5 Thus, for example, the following exchange: McKeon—”You guys
are grasping.”; Hayes—“No, we’re not grasping.”
reduction in McKeon’s hours, and her subsequent discharge
were each business decisions of the Clinic completely inde-
pendent of any actions of McKeon respecting disability insur-
ance or salary claims or her contacts with UNUM or the Colo-
rado State Department of Labor. More specifically, the Re-
spondent argues the initial warning in dispute arose from com-
plaints from employees of the Charging Party’s conduct and the
reduction in her hours was based on a determination that the
Clinic did not need her for the full workday. Finally, the Re-
spondent asserts the decision was taken to meet with McKeon
on March 7 because of a developing pattern of insufficient
conduct and her discharge occurred only upon the conclusion
drawn from her behavior at the meeting that she was not going
to change her belligerent attitude or conduct. Thus, the Re-
spondent argues it did not violate the Act in any manner and the
complaint should be dismissed.
It is appropriate to initially address the legal arguments re-
specting the issue of whether McKeon’s activities were pro-
tected under the Act. Thereafter, the analysis will turn to the
question of whether McKeon’s protected activities resulted in
her receiving the contested warning, reduction in hours, and/or
discharge.
2. Were McKeon’s activities protected under the Act
Section 8(a)(1) of the Act provides that it shall be an unfair
labor practice for an employer to interfere with, restrain, or
coerce an employee in the exercise of the rights guaranteed in
Section 7 of the Act. Section 7 in turn asserts that employees
have the right to “engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protec-
tion.” Thus, a statutorily sufficient degree of “concerted activi-
ties” is necessary to invoke the protections of Section 8(a)(1) of
the Act. The concept of “concertedness” has been one of evo-
lution and controversy through the Board’s history and indi-
vidual, setting specific, analyses of particular conduct are often
highly context sensitive. Each of the three activities advanced
as protected by the General Counsel will be discussed sepa-
rately below.
a. McKeon’s participation in the January 18, 1995 telephone
call to the Clinic’s insurance carrier
The telephone call and related circumstances are described,
above, and are not in substantial dispute. McKeon’s telephone
call presents the narrow6 legal issue: Did her individual7 ac-
tion rise to the level of concerted activity by virtue of the con-
text of events? The General Counsel seeks to invoke the
Board’s “logical outgrowth” doctrine. In Mike Yurosek & Son,
306 NLRB 1037 (1992), enfd. 53 F.3d 261 (9th Cir. 1995), the
Board held at 1038:

6 Much concerning McKeon’s telephone call is not in legal or factual
dispute. McKeon telephoned UNUM Insurance about insurance cover-
age which she was to receive. The inquiry therefore concerned a term
and condition of her employment. The Respondent specifically con-
ceded that there was no impropriety in her telephone call which would
justify punishment or adverse action against her. Employee telephone
calls to their employer’s insurance agents regarding insurance cover-
ages, current or possible, are clearly protected, if concerted. Harvest
Communications, 321 NLRB 40 (1996).
7 Although McKeon undertook her inquiry with fellow employee
Carman, Carman was an admitted supervisor at all relevant times and
the General Counsel does not assert that McKeon’s conduct was con-
certed by virtue of his participation in the activity.
PIKES PEAK PAIN PROGRAM 147
We will find individual action is concerted where evidence
supports a finding that the concerns expressed by the individ-
ual are [a] logical outgrowth of the concerns expressed by the
group.

The Board applied this doctrine in C & D Charter Power Sys-
tems, 318 NLRB 798 (1995), to hold that an individual em-
ployee’s complaints at a general employee meeting “constituted
concerted activity because they were the logical outgrowth of
the prior concerted complaints employees voiced.”
The Respondent argues that by the time of the telephone call
all other employee concerns had been answered and McKeon’s
actions were personal and isolated. Counsel for the Respondent
argues on brief at 15:

Counsel for the General Counsel presented no evidence that
any employee, other than Ms. McKeon, had additional con-
cerns about the plan after the January 9th staff meeting.
Rather, the evidence indicates Ms. McKeon’s phone call to
UNUM occurred after all questions concerning the ST/LT
plan had been resolved. In short, Ms. McKeon placed the
telephone call to UNUM merely to allay her own personal
suspicions about how the ST/LT plan was paid. Thus, the
UNUM phone call did not constitute concerted activity.

Contrary to the factual argument of the Respondent, however, I
find that there were ongoing questions among employees re-
specting the way in which the coverage premiums were being
paid.8 I credit the uncontradicted testimony of Margaret An-
drews that such questions and discussions continued among
employees through the time the phone call was placed. I fur-
ther credit her testimony that McKeon and Carman explicitly
announced to employees that they were going to inquire about
the matter and that at least some employees were present during
some or all of the telephone call.
Given this factual finding, and in light of the cases cited, I
find that the “logical outgrowth” doctrine applies to the
McKeon telephone call on January 18, 1996, to UNUM insur-
ance, and that the call was therefore protected concerted activ-
ity9 within the meaning of Section 7 of the Act.
b. McKeon’s questions at the January 23, 1996 staff meeting
Hayes’ testimony may be used to describe the conduct at is-
sue.

[McKeon] had stated—when I open up the agendas, I
ask if there’s any other items that need to be discussed,
and at the bottom of the agendas you will normally see
spaces to put that. [McKeon] asked to put in short-
term/long-term disability. I stated I would like to talk with
her and Lee [Carman] and Kevin [Murphy] after the meet-
ing. She did not leave it at that, she came back to me in a
very determined type of voice that said: “I want to know
why we cannot talk about this at this meeting; this is an
employee issue and I would like for us to talk about it

8 It is unnecessary to make conclusions respecting the manner of
premium payments, i.e., whether they were employee paid in the cir-
cumstances described above. It is enough to find, as I do, that the mat-
ter was ambiguous and confusing and that McKeon was not acting in
bad faith in making her inquiry.
9 The Respondent does not argue that the activities of McKeon, if
concerted, were not known to be such by the Respondent. Nor would
this argument be sustainable given that Carman her cohort in the call
was a supervisor who clearly observed the other employees involve-
ment in the matter. See also fn. 10, infra.
here.” And I very sternly said at that point: “I will talk
with you and Lee and Kevin after this meeting.”
She came back one more time in the stern voice of
stating to me: “I would like to talk about it now.” And I
looked at her very, very sternly—and I don’t do this nor-
mally in a team meeting—and I said, “Listen to what I
say; I will talk with you and Lee and Kevin after this
meeting regarding this.”

The General Counsel argues McKeon’s attempt to raise the
insurance matter at the meeting is concerted: (1) as a logical
outgrowth of the employees’ questions concerning the insur-
ance, as argued in the preceding section; (2) as a simple con-
tinuation of that phone call and earlier concerted conduct; and
(3) as threshold conduct designed to induce group action. The
Respondent opposes each argument.
The first two arguments have been analyzed above and the
issues decided in the General Counsel’s favor. Regarding the
“inducement to group action” question, the General Counsel
argues on brief at 11:

McKeon’s statement at the meeting that the disability
plans were of concern to all the employees and, thus,
should be discussed at the team meeting was clearly a call
for group action on the subject of the disability plans.
Hayes squelched any potential group discussion that could
in turn have lead to group action by punishing McKeon for
having the temerity to raise the subject over Hayes’ objec-
tion. In Meyers II, [Meyers Industries, 281 NLRB 882
(1986)] and in subsequent cases, the Board reaffirmed the
holding in Root-Carlin, Inc., 92 NLRB 1313, 1314 (1951),
that the protection of Section 7 extends to concerted activ-
ity which initially only involves a speaker and a listener,
for such activity is an indispensable preliminary to group
activity. In Neff Perkins, 315 NLRB 1229 fn. 1 (1994),
the Board specifically stated, “We note that employees
questions and comments concerning why conditions raised
at a group meeting called by an employer clearly come
within the definition of concerted activity under Board
precedent”; see also United Enviro Systems, 301 NLRB
942 (1991); Whitaker Corp., 289 NLRB 933 (1988). As
Hayes was not required to permit a group discussion on
the disability plans, retaliatory actions against McKeon for
having attempted to initiate such a discussion violated the
Act.

Counsel for the Respondent argues in opposition at 16–17 of
her brief:

Likewise, Ms. McKeon’s January 23rd request was not
“calculated to induce, prepare for, or otherwise relate[d] to
some kind of group action.” KNTV, Inc., 319 NLRB 447,
450 (1995) (employee’s request that his employer consider
improving employee wages was engaged in concerted ac-
tivity because his request was “a continuation of his open
and active engagement in, and leadership of, concerted ac-
tivities involving employee pay issues”). Rather,
McKeon’s request occurred after the ST/LT plan was no
longer an issue. Therefore, McKeon’s request was not a
logical outgrowth of concerns about the ST/LT plan.
Moreover, McKeon testified at the hearing that she told
Hayes she wanted to discuss the ST/LT plan at the January
23rd staff meeting because “I thought it was an issue that
pertained to all the team members, and . . . I thought we
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 148
should discuss it.” Transcript 132:9–11 (emphasis added).
No other team members expressed similar sentiments.
Transcript 41:6–9; 84:9–12. Therefore, the evidence dem-
onstrates that, at the January 23rd staff meeting, Ms.
McKeon merely sought to express her own individual and
personal confusion about the ST/LT plan.
The Board has held that “raising questions of common
concern at meetings with company officials is usually a
concerted act, particularly when the first person plural is
used by the employee.” Grimmway Enterprises, Inc., 315
NLRB 1276, 1279 (1995) (finding that employee who
stated “we wanted to know” and “I and all of my co-
workers want to know” was the designated spokesperson
of an employee group and thus his actions were protected
concerted activity). However, the Board further explained
that “[t]he Board will usually regard that step as an essen-
tial preliminary to the inducement of group action.” Id.
Because Ms. McKeon’s activity took place after the
ST/LT plan payment issue had been resolved, her activity
could not have been “an essential preliminary to the in-
ducement of group action.”
In short, there is simply no evidence Ms. McKeon was
engaged in protected concerted activity when she placed
the phone call to UNUM or made the January 23rd re-
quest. Rather, Ms. McKeon was acting alone and for her
sole personal benefit. [Emphasis in original.]

I reject the argument of the Respondent that, because the in-
surance coverage payment had been “resolved” as of the staff
meeting on January 23, McKeon’s activity could not have been
an essential preliminary to group action. If counsel means by
her argument that no employee concerns remained at that time,
I reject the argument on the facts. Counsel argument may
mean, rather, that because the insurance coverage had been put
in place and the means of payment implemented by January 23,
the employees were in effect faced with a fait accompli re-
specting which no group action was now possible and therefore
no action of McKeon at that time could be regarded as an es-
sential preliminary to group action. I reject this argument as
well. Even after the implementation, employees could seek to
have the means or source of payment of the insurance premi-
ums changed and, even if unsuccessful, could press their case
to the employer, to the insurance carrier, to public authorities,
to the public generally, or virtually to any forum at which they
believed help would be availing. Group action in the sense
used here is not necessarily successful or desirable action but
rather and simply the action of more than one employee con-
cerning the issue.
Based on my prior analysis, above, I agree with the General
Counsel that the conduct of McKeon on January 23, like that
of January 8, was concerted within the meaning of Section 7 of
the Act.10 Based on the cases cited and the record as a whole, I
also agree with the General Counsel that the actions of McKeon
on January 23 were concerted as conduct which was an essen-
tial preliminary to group action. I therefore find that the con-
duct was protected concerted activity within the meaning of
Section 7 of the Act.

10 Hayes specifically attributed to McKeon the statement at the meet-
ing: “[T]his is an employee issue and I would like for us to talk about it
here.” There is no question that Hayes knew, either from McKeon’s
remark itself or from previous conversations with Carman, or should
have known of the more general interest employee interest in the insur-
ance issue by this time.
c. McKeon’s filing of a wage claim with the Colorado State
Department of Labor
The General Counsel’s argument that McKeon’s contacts
and charge with the Colorado State Department of Labor were
protected concerted activity differs from the earlier arguments
respecting her call to the insurance carrier and her statements at
the staff meeting. On brief counsel for the General Counsel
argues:

General Counsel concedes that McKeon’s wage claim with
the Colorado State Department of Labor was not an out-
growth of any group concern. However, the issue raised by
McKeon to the State Labor Board, namely whether an ex-
empt, salaried employee could be docked pay for missing a
day or several hours of work, was clearly a question that re-
lated to all of Respondent’s salaried employees, which in-
cluded most of McKeon’s team. The significance of this is-
sue was highlighted by Respondent’s invitation to Joseph
Herrera to speak to Respondent’s management about the state
regulations applicable to McKeon’s complaint. (Tr. 97–98.)
In Alleluia Cushion, 221 NLRB 999 (1975), and its
progeny, the Board held that an individual action consti-
tuted concerted activity as long as the individual activity
involved a group concern; see Steere Dairy, Inc., 237
NLRB 1350 (1978); P & L Cedar Products, 224 NLRB
244 (1976). General Counsel takes the position herein that
the Allelulia Cushion theory should be applied to
McKeon’s wage complaint because, although McKeon
had not discussed the matter with other employees and
was not authorized to speak on behalf of others, the com-
plaint involved an issue that could have general applica-
tion to all salaried employees of Respondent, and, there-
fore, it was a matter of general concern and constituted
concerted activity under Allelulia Cushion. Thus, any re-
taliation against McKeon due to her wage complaint was
violative of the Act.4

4 While General Counsel recognizes that Meyers I and II and their
progeny currently set forth Board law defining concerted activity, the
Board has signaled a willingness to reconsider whether it should re-
turn to the Allelulia Cushion line of cases for defining concerted activ-
ity. See C & D Charter Power Systems, [318 NLRB 798 fn. 2
(1995)]; Liberty National Products, 314 NLRB 630 fn. 4 (1994).

The Respondent emphasizes in its brief that “the General Coun-
sel failed to present evidence that any other employee was
aware of Ms. McKeon’s claim or that other employees had
similar complaints” and therefore “Ms. McKeon filed the wage
claim on her own behalf” and “the filing of the wage claim was
not protected concerted activity.”
The Board in Alleluia Cushion Co., 221 NLRB 999 (1975),
found constructive concert and hence protected activity when
an individual acting on his own, but concerning a matter of
workplace safety common to all employees, contacted a Federal
workplace safety agency. That doctrine, were it current law,
would clearly apply to the actions of McKeon’s in contacting
the Colorado State Department of Labor respecting a claim
based on an employer’s actions in docking a salaried em-
ployee’s wages. Many of the nonsupervisory employees at the
Clinic are salaried. In a protracted litigation however, culminat-
PIKES PEAK PAIN PROGRAM 149
ing in Meyers Industries, 281 NLRB 882 (1986), affd. sub nom.
Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487
U.S. 1205 (1988), the Board exercised its discretion to specifi-
cally overrule Alleluia and abandon its constructive concert
doctrine. As the counsel for the General Counsel notes, in the
cases cited in his quoted argument above, various Board mem-
bers since this abandonment of the constructive concert doc-
trine have questioned Meyer’s rejection of Alleluia. The Meyer
decision, even if questioned from time to time by individual
members of the Board, has not been reversed by the Board and,
as the General Counsel concedes, remains good law.
The General Counsel urges that I, in effect, overrule Meyers
and return to the Alleluia standard. This is surely a proper ar-
gument for the General Counsel to make to the Board and
therefore is properly made to me to preserve the matter for later
argument to the Board, but reversing current Board law is sim-
ply beyond my reach as an administrative law judge. Adminis-
trative law judges are required from time to time to apply the
Act and the Board’s holdings to new areas or to determine the
most appropriate Board cases or doctrines to follow where
precedent is in conflict. Thus, interpolation and in some cases
extrapolation of current doctrines are properly undertaken by a
judge seeking to apply the law to a given case. The doctrine of
stare decisis, i.e., the principal of judicial adherence to decided
cases, however, generally requires lower courts to apply the
settled law of prior decisions wherever applicable without
modification or change. The Board has long specifically re-
quired its administrative law judges to follow Board precedent
unless and until such precedent is changed by the Board or the
Supreme Court, even in circumstances where contrary current
Court of Appeals law exists. Waco, Inc., 273 NLRB 746, 749
fn. 14 (1984); Iowa Beef Packers, 144 NLRB 615, 616 (1963).
As the General Counsel concedes and as I find, the constructive
concert doctrine and the Meyers decision is squarely involved
here.
I view the requirement that judges follow precedent as ex-
tending to areas where the law is under challenge and individ-
ual Board members have expressed reservations about current
law. Indeed, even were it seemingly apparent that a current
Board majority would soon change current law, unless and until
that law has been changed by Board or Supreme Court decision
or other means such as the issuance of a new rule or regulation,
the current law will continue to bind me. This being so, I de-
cline to reevaluate Meyers or return to the Alleluia constructive
concert doctrine. Meyers is current law which binds me. It
squarely holds that individual actions such as those of McKeon
in dealing with the Colorado State Department of Labor are not
concerted activities and therefore are not protected under the
Act. I so find.
Given this finding, I shall not further consider whether
McKeon suffered adverse actions as a result of her contacts and
charge with the Colorado State Department of Labor. The Gen-
eral Counsel must take its argument that the doctrine of con-
structed concert should be resurrected by the Board.
3. Was McKeon discriminated against because of her protected
concerted activities
The complaint at paragraph 4 alleges three separate acts of
discrimination against McKeon: the warning given her on Feb-
ruary 2—complaint subparagraph 4(a), the reduction in her
work hours announced on February 21—complaint subpara-
graph 4(b), and her discharge on March 7, 1996—complaint
subparagraph 4(c). These acts are alleged to have been under-
taken by the Clinic because of McKeon’s protected activities in
violation of Section 8(a)(1) of the Act.
As the parties ably discussed on brief, the Board in Wright
Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), established a test
for approaching discrimination allegations which was recently
restated in Manno Electric, Inc., 321 NLRB 278, 280 fn. 12
(1996):

Under [the Wright Line] test, the Board has always first re-
quired the General Counsel to persuade that antiunion senti-
ment was a substantial or motivating factor in the challenged
employer decision. The burden of persuasion then shifts to
the employer to prove its affirmative defense that it would
have taken the same action even if the employees had not en-
gaged in protected activity. Office of Workers Compensation
Programs v. Greenwich Collieries, [114 S.Ct. 2551, 2557–
2558 (1994)].

That test shall be applied here.
a. Was McKeon warned on February 2 because of her pro-
tected concerted activities of calling UNUM insurance on
January 12 and her remarks at a staff meeting on January 2311
The General Counsel contends that McKeon was warned on
February 2 because of her January 12 telephone call to the in-
surance company and her attempts to raise the subject of dis-
ability coverage at the January 23 staff meeting. Thus, the
General Counsel argues the reasons given McKeon were sim-
ply pretext designed to cloak the true, but improper motive of
Hayes—animosity against McKeon because of her protected
concerted activity. The General Counsel also notes the timing
of the warning as occurring very shortly after the occurrence of
McKeon’s protected conduct.
I have found McKeon’s call and staff comments to be con-
certed and protected activity. There is no dispute that Hayes
was upset by McKeon’s call to the insurance carrier which had
potentially adverse consequences for the Clinic and was an-
gered by the attempt of McKeon to raise the insurance matter at
the staff meeting. Since Hayes was on vacation until Monday,
January 22, she learned of each of the protected acts of
McKeon during the week before the Friday, February 2, 1996
meeting with McKeon at which she was warned. Thus, there is
a close temporal relationship between the protected activity and
the warning. Further, the session with McKeon on February 2
was—other than contested informal discussions between Hayes
and McKeon some months earlier—the first time at which
management had informed McKeon of its perceived inadequa-
cies in her work or of employee complaints about her availabil-
ity.
The Respondent concedes the timing of events is not propi-
tious from the Respondent’s perspective. Counsel for the Re-
spondent argues, however, that Hayes’ passions or animosity
generated by McKeon’s two actions at issue were short-lived
and quickly passed without consequence to McKeon’s em-
ployment. Further, the Respondent notes that the meeting on
February 2, originally scheduled for February 1, was not in-
tended to be a formal matter, but rather more of an informal,
mediated session to let McKeon know that there was recurring

11 The two events were known to Hayes and Carman at the time the
warning was issued and therefore it is unnecessary to separate the two
protected activities in determining if McKeon was improperly discrimi-
nated against.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 150
problems not in the quality of her work but rather in her being
at the Clinic available to work. The Respondent emphasizes
the denial of the Respondent’s agents that improper motive
underlay any of the actions taken respecting McKeon.
Versions of the February 2 meeting are not in substantial
dispute. There is no doubt Hayes raised the matter of McKeon’s
making appointments and being gone from the Clinic during
working hours and that McKeon was angry because she had
earlier discussed at least certain of these matters with Hayes.
There is no doubt that Hayes suggested that McKeon was not
working full time, that McKeon challenged the assertion she
was not checking out properly, and that Hayes labeled
McKeon’s denial as inconsistent with the reports she had re-
ceived from other Clinic employees. Finally, there was no
question that a series of procedures were put in place following
the meeting to monitor McKeon’s activities. While Hayes
testified that the meeting was intended to be less acrimonious,
in her view McKeon became very angry and challenging and it
seems clear in Hayes’ version of events that her own conduct
took a sterner aspect in response to McKeon’s reaction. In all
events, it is clear that Hayes told McKeon that, if her unsatis-
factory behavior continued, she could be changed from a sala-
ried to an hourly employee or changed from a full-time to a
half-time employee.
The issue is not so much as what was said at the February 2
meeting, but rather whether the matters asserted by Hayes were
the true reason for the meeting and warning given to McKeon.
On the motive question, Carman corroborates Hayes. Carman
testified that the February 2 meeting came about in conse-
quence of a joint decision of Murphy, Hayes, and himself to
raise employee complaints with McKeon. Carman testified he
had received various complaints from other employees respect-
ing McKeon’s “frequent phone calls, not notifying of when she
was leaving, the excessive time spent out of work for other
appointments” and concluded McKeon’s job performance was
involved and needed to be addressed.
Evaluating this allegation of the complaint under Wright
Line, it may well be that the General Counsel’s evidence con-
cerning timing, animus, and the lack of any prior warning of
similar kind sustains the General Counsel’s prima facie case
shifting the burden of persuasion to the Respondent. On this
record, however, I find, even in that situation with the burden
explicitly on the Respondent, that the Clinic would have taken
the action it did on February 2 even had McKeon not engaged
in any prior protected concerted activity.
In large measure, this finding is based on the weakness of the
General Counsel’s argument that the animosity of the Clinic
and Hayes for McKeon’s call to the insurance company and
comments at the staff meeting would have caused Hayes to
discriminate against McKeon, and that in order to do so, Hayes
and Carman would, in affect, fabricate, or enhance employee
complaints in order to create a pretext to justify taking action
against McKeon on February 2 and to lie about the entire mat-
ter at the trial. Hayes admitted unhappiness about the fact that
her employees had contacted the insurance carrier and supplied
it with information that had the potential to adversely effect the
Clinic, and that unhappiness would logically have been directed
against both McKeon and Carman. There is no evidence that
one had a greater role than the other nor that the Clinic or
Hayes in particular thought that this was so. Yet, there is no
suggestion that Carman—who as a supervisor was not pro-
tected under the Act for his conduct in contacting the insurance
carrier—was warned nor treated adversely by Hayes. Nor do I
find the staff comments of McKeon, while clearly of immediate
significance to Hayes, was the type of conduct which would
have or did produce a lingering hostility of sufficient size and
duration to cause adverse action to be taken against McKeon.
Finally, I am simply unable on this record, given my favorable
evaluation of the demeanor and credibility of Carman, to reject
his testimony that the warning meeting was caused by em-
ployee complaints respecting McKeon, or to hold that such was
not the case and rather that Hayes and Carman were engaged in
a conspiracy respecting the matter. Rather, I specifically find
there were precipitating employee complaints to Carman about
McKeon which caused the February 2 meeting.
All of this being so, and on the basis of the record as a
whole, including my evaluation of the relative demeanor of the
witnesses on the matters in dispute, I simply find the General
Counsel’s evidence is insufficient to prevail over the testimony
of Carman and Hayes respecting the events and motivations
underlying the February 2 meeting and the warning that arose
out of it. Accordingly, I shall dismiss the allegations of sub-
paragraph 4(a) of the complaint.
b. Were McKeon’s hours reduced on February 21 because of
her protected concerted activities
There is no doubt that McKeon was told in a meeting with
Hayes, Carman, and Murphy on Wednesday, February 21, that
her hours were to be cut from 8 to 3 hours per day and that her
hours were in fact cut constant with the announcement effective
Monday, February 26.
The General Counsel argues the reduction in McKeon’s
hours on February 21 was but a continuation of the Respon-
dent’s campaign against her commencing with her earlier warn-
ing. Counsel notes the reduction in hours made McKeon ineli-
gible for the disability insurance program which had been the
source of difficulty between McKeon and the Clinic heretofore.
Counsel notes that the Respondent’s proffered business defense
that a reduction in hours had been planned by Murphy, Carman,
and Hayes over a course of weeks preceding its implementation
is not clearly supported by specific testimony nor documentary
evidence. Counsel also states that the argument that McKeon’s
hours were cut in response to business necessity had not been
advanced to the regional office during the meetings held with
Hayes and Carman during the investigation of the charge and
should be regarded as simply a recent fabrication.
Murphy and Carman each testified that hours of employees
and McKeon’s hours in particular had been under discussion
for a period of weeks, but only Hayes testified specifically that
the decision to reduce McKeon’s hours had been made before
February 21, and was specifically designed to match McKeon’s
morning work schedule. In this sense the Respondent’s defense
is weaker than that offered respecting the February 2 warning
for in that earlier situation Carman’s testimony was more cor-
roborative of Hayes than that presented respecting the reduction
in hours.
If the Respondent’s defense concerning the cut in hours is
weaker than that offered respecting the warning, so, too, the
General Counsel’s theory of animus and other indirect evidence
of a violation of the Act is more attenuated. Thus, the signifi-
cance of the protected conduct—the call to the insurance com-
pany and the staff meeting comments—was further in the back-
ground and was less significant both in consequence of the
passage of time and, as a result of the fact, that the insurance
PIKES PEAK PAIN PROGRAM 151
carrier had indicated the questions and problems concerning the
policy had been resolved and the coverage would be continued.
Most importantly, however, having found that the February 2
warning was not based on improper grounds, there is little basis
for finding that the subsequent adverse action against McKeon
was undertaken based on McKeon’s protected activities occur-
ring in January. For all of these reasons and based on the re-
cord as a whole, I find that there is insufficient evidence to
establish the General Counsel’s prima facia case that the Re-
spondent reduced McKeon’s hours because of her telephone
call to UNUM Insurance and/or because she spoke up at the
staff meeting on January 23. I shall therefore dismiss com-
plaint subparagraph 4(b).
c. Was McKeon’s termination on March 7 because of her pro-
tected concerted activities
The Respondent’s witnesses, Hayes, Murphy, and Carman,
testified that they did not initially intend to terminate McKeon
at the meeting of March 7. Rather, they asserted that the meet-
ing was to discuss the perceived inadequacies in McKeon’s
performance noted above and to attempt to induce her to im-
prove her conduct and performance. Hayes testified that ob-
serving the obduracy and defensiveness of McKeon as Carman
attempted to discuss her deficiencies, Hayes simply determined
the situation was unsatisfactory and discharged McKeon.
The primary issues as to this count of the complaint are two-
fold.12 First is the issue of Hayes subjective motivation in fir-
ing McKeon. The second is the timing of the decision to fire
her. The Respondent’s three meeting participant witnesses testi-
fied that Hayes decision to fire McKeon was taken during the
course of the March 7 meeting. Hayes testified that her deter-
mination arose from observing the hostility and defensiveness
of McKeon during Carman’s discussion with her concerning
her failings at the meeting.
The General Counsel argues that there is evidence to suggest
that the Respondent—or at least Hayes—had decided to dis-
charge McKeon at least by March 4 because by that time Hayes
had solicited and received from insurance agent Nowels a “re-
cap” of events surrounding the phone calls to UNUM in Janu-
ary. Hayes had also transmitted to her human resources con-
sultants before the March 7 meeting Carman’s list, described
above, which was given to McKeon at the meeting and was the
basis for the discussions held.
I agree with the General Counsel that the noted evidence
tends to support his theory that the discharge was preplanned
and, for that reason, was arguably because the Respondent, or
at least Hayes, was hostile to McKeon because of her earlier
activities. Such an argument would have far greater force in
supporting a finding of a violation of the Act, however, if
McKeon’s charge with the State Department of Labor were
protected concerted activity.13 That charge and McKeon’s
injury reported as occurring on February 21 just before the
meeting of Hayes, Murphy, and Carman with McKeon that day,

12 The General Counsel argues that the discharge was but the culmi-
nation of the course of wrongful discrimination earlier occurring on
February 3 and 23. Further, the General Counsel argues that McKeon’s
conduct at the meeting was, at least in part, a response to that earlier
illegal course of conduct and therefore was entitled to “more latitude”
that the Respondent gave it. These arguments are defeated by my ear-
lier findings that the warning and reduction in McKeon’s hours were
not improper.
13 See discussion, sec. 3,d, the Department of Labor Claim, infra.
and clearly suspected by the Clinic’s agents as being concocted,
could also well be argued as a basis for a motivation to dis-
charge McKeon given the closer time of their occurrence to the
discharge.
On this record, however, I am unable to sustain the General
Counsel’s argument on the evidence offered. Having found
that the earlier two actions of the Clinic against McKeon al-
leged as violations of the Act were not undertaken because of
McKeon’s call to the insurance company nor because of her
conduct at the staff meeting, the General Counsel’s case as to
the discharge allegation is rendered especially difficult. There is
simply insufficient evidence of other than very short term es-
sentially impulsive hostility by Hayes to McKeon’s protected
concerted activity and sufficient, if not overwhelming, evidence
that the Respondent’s agents took the actions they did based on
McKeon’s perceived inadequacies independent of her protected
acts.
All this being so, and based on the record as a whole and the
same evaluative process set forth in resolving the two earlier
allegations, I find the General Counsel’s evidence simply does
not meet the General Counsel’s burden even to establishing a
prima facia case that McKeon’s March 7 discharge was based
on her January activities found protected, above. Accordingly,
I find complaint subparagraph 4(c) is without provable merit
and will be dismissed.
d. The Department of Labor claim
The General Counsel also alleged that the Respondent re-
duced McKeon’s hours and thereafter discharged her because
of her conduct in filing a charge with the Colorado State De-
partment of Labor. These theories of a violations of the Act
were clearly part of the complaint allegations in subparagraphs
4(b) and (c), but have not been evaluated above save as dis-
cussed as a basis for finding the Respondent did not discrimi-
nate against McKeon for other protected concerted activities.
Further, these allegations raise significant questions of fact
which are not resolved by my findings, above, i.e., that
McKeon’s insurance inquiry and staff meeting conduct did not
precipitate the adverse actions against McKeon by the Clinic as
alleged in the complaint.
I need not resolve these factual questions concerning
whether Hayes or the Clinic’s animus against McKeon because
of her salary claim with the Department of Labor caused the
Respondent’s reduction in her hours or her discharge, however,
because I have determined, above, that McKeon’s actions re-
specting the Department of Labor claim were not concerted and
therefore are not protected conduct under current Board law.
That being so, no violation could be sustained whatever factual
resolution occurred respecting the Respondent’s animus based
on such unprotected employee conduct. Thus, in addition to
the analysis under taken above, under the General Counsel’s
theory that McKeon’s actions with the State Department of
Labor were constructively concerted and hence protected, I
find that complaint paragraphs 4(b) and (c) are also without
merit under this theory and should be dismissed.
On the basis of the above findings of fact and on the entire
record, I make the following
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent did not violate the Act as alleged in the
complaint.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 152
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended14

14 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
ORDER
The complaint shall be dismissed in its entirety.

adopted by the Board and all objections to them shall be waived for all
purposes.