## Facts

- The Epilepsy Foundation of Northeast Ohio operated a nonunion workplace.
- Arnis Borgs was directed to attend an investigatory meeting he reasonably believed could lead to discipline.
- Borgs requested coworker representation at the meeting; management denied the request and discharged him for refusing to proceed without a representative.
- At the time of Borgs’s discharge, then-controlling NLRB precedent clearly stated that nonunion employees lacked a right to representation at investigatory interviews.
- Ashraful Hasan communicated with coworkers and management about working conditions and employee treatment.
- The Foundation discharged Hasan; the NLRB later found the discharge was motivated by Hasan’s protected concerted activity.
- The NLRB changed its interpretation of NLRA § 7 to extend Weingarten-type representation rights to nonunion employees and applied that change retroactively to find Borgs’s discharge violated NLRA § 8(a)(1).
- The Foundation petitioned for review; the NLRB cross-applied for enforcement.

## Issues

1. Whether the NLRB abused its discretion by retroactively applying a new interpretation of NLRA § 7 extending Weingarten representation rights to nonunion employees to impose § 8(a)(1) liability for Borgs’s discharge.
2. Whether substantial evidence supported the NLRB’s finding that Hasan engaged in protected concerted activity under § 7 and was unlawfully discharged in violation of § 8(a)(1).

## Decision

- The court granted the petition for review in part and denied it in part, and granted enforcement in part and denied it in part.
- The court held the NLRB could not retroactively apply its new Weingarten extension to Borgs because the prior contrary rule was clear and the employer reasonably relied on it.
- The court denied enforcement of the Board’s unfair-labor-practice finding and remedies as to Borgs.
- The court upheld, under the substantial-evidence standard, the Board’s finding that Hasan’s conduct was protected concerted activity and that his discharge violated § 8(a)(1).
- The court enforced the Board’s order as to Hasan.

## Legal Principles

- An agency’s new rule may be limited to prospective application where it substitutes a new rule for an old, reasonably clear rule and retroactivity would upset settled reliance interests.
- Retroactive application is more likely permissible for clarifications or new applications consistent with existing law than for a reversal of a clear prior rule.
- Under NLRA § 7, employee activity concerning working conditions can be protected and concerted when undertaken with or on the authority of other employees for mutual aid or protection.
- NLRB findings that an employee was discharged for protected concerted activity are reviewed for substantial evidence, and will be enforced when supported by the record.

## Conclusion

The D.C. Circuit rejected retroactive unfair-labor-practice liability based on the NLRB’s newly adopted extension of investigatory-interview representation rights to nonunion employees, but enforced the Board’s determination that the employer unlawfully discharged a worker for protected concerted activity.


Epilepsy Found. of Ne. Ohio v. NLRB, 268 F.3d 1095 (D.C. Cir. 2001)