Epilepsy Foundation of Northeast Ohio v. NLRB: D.C. Circuit Extends Weingarten Rights to Nonunion Workers

IMMIGRANTS & EMPLOYMENT

Immigrants' Employment Rights and Remedies

EPILEPSY FOUNDATION OF NORTHEAST OHIO V. NLRB: D.C. CIRCUIT EXTENDS WEINGARTEN RIGHTS TO NONUNION WORKERS
Immigrants' Rights Update, Vol. 15, No. 7, Nov. 16, 2001

In an important decision for nonunion workers across the country, the D.C. Circuit Court of Appeals has upheld a July 2000 decision by the National Labor Relations Board (NLRB) to extend "Weingarten rights" to nonunionized workers who are called into a disciplinary meeting by their employer.

Weingarten rights arise out of a case, NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), in which the Supreme Court held that Section 7 of the National Labor Relations Act (NLRA) provides employees with a statutory right to request the presence of a union representative at an interview which the employee reasonably believes might result in disciplinary action. Id., 420 U.S. at 256. Section 7 of the NLRA states that "[e]mployees shall have the right . . . to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." See 29 U.S.C. § 157. The NLRB and the courts have recognized that Section 7 protects both union and nonunion employees who engage in "concerted activity." See NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962). In Weingarten, the facts arose in a unionized workplace, and thus the Supreme Court did not reach the issue of whether these rights extend to nonunionized workers. Over the years, the NLRB has changed its position as to whether nonunion employees enjoy Weingarten rights.

In a 1982 decision, Materials Research Corp., 262 N.L.R.B. 1010 (1982), the NLRB extended the Weingarten rule to cover employees in nonunion workplaces, holding that such rights stem from Section 7 of the NLRA rather than from a union's right of representation under Section 9. Three years later, however, the NLRB reversed itself in Sears, Roebuck & Co., 274 N.L.R.B. 230 (1985), holding that the Weingarten rule does not apply if there is no certified or recognized union. Thus, the NLRB's ruling in the case before the D.C. Circuit overturned a 12-year precedent under which Weingarten rights were limited to unionized employees.

The present case involves two employees of the Epilepsy Foundation of Northeast Ohio who were discharged. After submitting a memorandum to their supervisor's boss that criticized their supervisor, they were each called to a meeting with management. One of the employees refused to attend the meeting unless his coworker was present, but the company denied this request, and he was subsequently fired. The other coworker went ahead and met with management on his own, and he was given a written warning for writing the memo. He was fired a few months later for insubordination, which included writing and submitting the memo. The administrative law judge (ALJ) who heard the fired workers' wrongful termination complaint found that "current [NLRB] law" does not extend Weingarten rights to nonunion employees and thus that the discharge of the first employee did not violate the NLRA. In a 3 to 2 vote, the NLRB reversed the ALJ's finding and extended the Weingarten rule to nonunion workers.

In affirming the NLRB's decision, the D.C. Circuit rejected the Epilepsy Foundation's argument, inter alia, which relies on the dissenting opinion of Board Member Brame that an extension of Weingarten rights to nonunion workers conflicts with Section 9(a) of the NLRA because it forces employers to "deal with" the equivalent of a union representative. Section 9(a) provides that representatives selected for the purposes of collective bargaining are the exclusive representatives of the employees. However, the court noted that "dealing" with an employee representative is not equivalent to bargaining collectively with a union and that under the Weingarten rule the employer would not be required to bargain with the employee's representative, since the employer was free to forego the interview and resolve the matter in some other way.

Finally, the NLRB had applied its ruling extending the Weingarten rule to nonunion settings retroactively, holding that the Epilepsy Foundation wrongfully discharged the employee who requested the assistance of his coworker at the meeting. However, the court of appeals held that the NLRB could not apply this new ruling retroactively, since it must "protect the settled expectations of those who had relied on the preexisting rule," such as the Epilepsy Foundation.

Epilepsy Foundation of Northeast Ohio v. NLRB, No. 00-1332 2001, U.S. App. LEXIS 23722 (D.C. Cir. Nov. 2, 2001).