Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The National Labor Relations Board's recent expansive view of employee rights is not news. What is news is the current Board majority's willingness to hold employers liable for conduct that, on its face, does not infringe any rights protected by federal labor law. Some recent cases have raised the question whether an employer's lawful conduct can nevertheless establish that an unfair labor practice has occurred.
In one such case, the U.S. Court of Appeals for the D.C. Circuit recently answered "no." In Jackson Hospital Corp. v. NLRB, (pdf) a hospital indefinitely suspended a nurse because of her refusal to participate in a meeting with her supervisors without the presence of a union representative. The Board found that the nurse had no legal right to a union representative at the meeting. To the contrary, because it was being held solely to present discipline that her supervisor already decided to impose, the right to request union representation under NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975) did not apply.
However, although the employee had no right to a Weingarten representative given the purpose of the meeting, the Board concluded that suspending the nurse for refusing to attend was unlawful. Specifically, it found that the nurse's supervisors provoked her into asserting a nonexistent right in order to justify the suspension when she refused to participate in the meeting, as expected. While the D.C. Circuit did not dispute that such a ruse could constitute discrimination, the court concluded there was not a "jot of evidentiary support" for it in this particular case. There was no evidence, for instance, that prior to the meeting supervisors intended to provoke the nurse or even that they discussed Weingarten rights generally.
The nurse in Jackson Hospital clearly did not understand the contours of the law under Weingarten. Although the NLRB’s determination was not upheld by the appellate court, the Board's initial ruling reflects the view that an employee's ignorance of the law should be excused even when the employee insists on a nonexistent right. This suggests not only that employers must be correct about their legal obligations when taking adverse action against an employee; they also must be prepared to demonstrate that they have not caused or contributed to the employee's confusion about her rights in the first place.
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