Epilepsy Found. v. NLRB - 348 U.S. App. D.C. 26, 268 F.3d 1095 (2001)

Rule:

In a unionized workplace, an employee's request for union representation during an investigatory interview is undoubtedly concerted activity for mutual aid and protection. Thus, even a lone employee's invocation of a right grounded in his collective-bargaining agreement is a concerted activity in a very real sense.

Facts:

Arnis Borgs and Ashraful Hasan worked as a transition assistant and a transition specialist, respectively, for the Foundation and were both supervised by Rick Berger. After some disagreements with Berger, Borgs and Hasan sent a memorandum to Berger on January 17, 1996 stating that Berger’s supervision of the program operations performed by them “is not required” and that “[o]nly support staff assistance is needed in this regard.” On January 29, 1996, Borgs and Hasan sent a lengthier memorandum to Christine Loehrke, Berger's supervisor, outlining several complaints about Berger's supervision and identifying occasions when Berger acted, in their opinion, inappropriately and unprofessionally. Berger then requested to meet individually with Borgs and Hasan. After airing several different proposals, Borgs asked for Hasan to attend a meeting at which he, Berger, and Loehrke were scheduled to attend. Loehrke denied Borgs' request to have Hasan attend the meeting. When Borgs refused to meet without Hasan, Loehrke told him to go home for the day and return the next morning. Borgs returned to work the next day and was fired by Loehrke for refusing to meet with his supervisors. Hasan, unlike Borgs, met with Berger and Loehrke on February 1. At this meeting, Loehrke told Hasan that the memo of January 17 was inappropriate. After the meeting, Hasan received a warning notice from Loehrke stating that Hasan's involvement with the January 17 memo was "gross insubordination" and that any further acts of misconduct or insubordination would result in Hasan's immediate discharge. Loehrke and Hasan met again on February 2 to review the January 29 memo. Subsequently, in March, Hasan refused to sign performance objectives given to him by Berger. On March 25, Hasan was summoned to Loehrke's office and told that he was being discharged.

The Administrative Law Judge's ("ALJ") determined that because "current Board law" did not extend Weingarten rights to nonunion employees, the Foundation's discharge of Borgs did not violate § 8(a)(1). The ALJ likewise held that Hasan's termination was not a violation of the Act because "there was no nexus between Hasan's discharge and protected activity on his part." The NLRB, by a 3-to-2 vote, reversed the ALJ's finding in part and extended the Weingarten rule to nonunion workers. The Board applied this extension retroactively to Borgs' conduct, held that Borgs' request to have a coworker attend the meeting with the supervisor was therefore protected activity, and that the Foundation discharged Borgs for engaging in protected activity in violation of the Act. The NLRB, by the same 3-to-2 vote, held that the January 17 and January 29 memoranda were "inextricably intertwined," that both memoranda "related to [Borgs' and Hasan's] conditions of employment," that Hasan was punished for engaging in protected activity, and that the Foundation did not demonstrate that they would have fired Hasan even in the absence of this protected activity.

Issue:

Did the Board err in extending Weingarten to nonunion workers?

Answer:

No.

Conclusion:

Section 7 of the NLRA states that "employees shall have the right … to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." It follows, therefore, that if "having a coworker present at an investigatory interview which the employee reasonably believes might result in disciplinary action," Board Decision, at 1, is concerted action for mutual aid or protection, then the Board's decision rests on a permissible construction of the statute. The NLRB has determined that the act of requesting another's presence at an investigatory interview "enhances the employees' opportunities to act in concert to address their concern 'that the employer does not initiate or continue a practice of imposing punishment unjustly.' " In other words, the presence of a coworker gives an employee a potential witness, advisor, and advocate in an adversarial situation, and, ideally, militates against the imposition of unjust discipline by the employer. The Board's position also recognizes that even nonunion employees may have a shared interest in preventing the imposition of unjust punishment, and an employee's assertion of Weingarten invokes this shared interest. The Board's determination that an employee's request for a coworker's presence at an investigatory interview is concerted action for mutual aid and protection and thus within the realm of § 7 is therefore reasonable. And, as the Supreme Court has made clear, "it is the province of the Board, not the courts, to determine whether or not the 'need' [for a Weingarten-type rule] exists in light of changing industrial practices and the Board's cumulative experience in dealing with labor-management relations."