Epilepsy Foundation Of Northeast Ohio v. NLRB

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


Borgs had requested that Hasan be permitted to attend a meeting between him and two supervisors with whom he had certain issues. 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 met with Berger and Loehrke and was eventually discharged a few months later. The ALJ determined that because current 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. Id. at 6-7. P then petitioned this court for review of the findings of violations on these unfair labor practice charges, and D cross-petitioned for enforcement.