Epilepsy Found of N.E. OH. v. Nat'l Labor Relations Bd.

• Decision Date: 02 November 2001
• Docket Number: No. 00-1332,00-1332
• Citation: 268 F.3d 1095
• Parties: (D.C. Cir. 2001) Epilepsy Foundation of Northeast Ohio, Petitioner v. National Labor Relations Board, Respondent
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1095

268 F.3d 1095 (D.C. Cir. 2001)

Epilepsy Foundation of Northeast Ohio, Petitioner v. National Labor Relations Board, Respondent

No. 00-1332

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 2, 2001

Decided November 2, 2001

Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board

Anita Barondes argued the cause for petitioner. With her on the briefs were Peter Chatilovicz, Ronald A. Lindsay, and Steven M. Moss.

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

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

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

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

Opinion for the Court filed by Circuit Judge Edwards.

Harry T. Edwards, Circuit Judge:

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

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

The Foundation claims that the holding in this case is unlawful because it cannot be squared with Weingarten. We disagree. The Court's decision in Weingarten did not deal with an employee's request for coworker representation in a nonunion setting, and the Board's decision in this case is a reasonable reading of 7 of the NLRA. An otherwise reasonable interpretation of 7 is not made legally infirm because the Board gives renewed, rather than new, meaning to a disputed statutory provision. It is a fact of life in NLRB lore that certain substantive provisions of the NLRA invariably fluctuate with the changing compositions of the Board. Because the Board's new interpretation is reasonable under the Act, it is entitled to deference. See United States v. Mead Corp., 533 U.S. 218, 121 S. Ct. 2164 (2001).

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

I. Background

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

As mentioned during earlier discussions (albeit brief) with you, both Dr. Ashraful Hasan and Mr. Arnis Borgs reiterate that your supervision of the program operations performed by them is not required.

Your input to the NIDRR project in the past is appreciated. At this stage, the major area which has to be addressed deals with outreach. Only support staff assistance is needed in this regard.

Exhibit GC-12, reprinted in Board Decision, at 1 n.4. On January 29, 1996, Borgs and Hasan sent a lengthier 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. See Exhibit GC-13, reprinted in Joint Appendix ("J.A.") 209.

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

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

[o]n March 29, when he returned to pick up his belongings, [Hasan] was given a letter signed by Loehrke stating that he was terminated for his conduct over the previous nine months, including, refusal to accept supervision on the NIDRR project and various confrontations with staff members. Loehrke testified that Hasan was terminated because he refused to sign a statement of personal project objectives given him by Berger, that his refusal was done "willingly" and "defiantly," that it constituted gross insubordination and subjected him to discharge. The Respondent's brief confirms that the reason Hasan was terminated was his refusal to sign the performance objectives. Id. at 29.

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

The NLRB, by a 3-to-2 vote, reversed the ALJ's finding in part and extended the Weingarten rule to nonunion workers. The Board applied this extension retroactively to Borgs' conduct, held that Borgs' request to have a coworker attend the meeting with the supervisor was therefore protected activity, and that the Foundation discharged Borgs for engaging in protected activity in violation of the Act. Id. at 4-5. The NLRB, by the same 3-to-2 vote, held that the January 17 and January 29 memoranda were "inextricably intertwined," that both memoranda "related to [Borgs' and Hasan's] 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. Id. at 6-7. The Foundation then petitioned this court for review of the findings of violations on these unfair labor practice charges, and the Board crosspetitioned for enforcement.

II. Analysis

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

A. The...