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Epilepsy Foundation of Northeast Ohio v. NLRB

Citation. Epilepsy Found. v. NLRB, 268 F.3d 1095, 348 U.S. App. D.C. 26, 168 L.R.R.M. 2673, 144 Lab. Cas. (CCH) P11,129 (D.C. Cir. Nov. 2, 2001)
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Brief Fact Summary.

The National Labor Relations Board (NLRB) reinterpreted a rule and applied it retroactively, holding the Epilepsy Foundation of Northeast Ohio (Foundation) liable for the discharge of an employee.

Synopsis of Rule of Law.

“In considering whether to give retroactive application to a new rule, [t]he governing principle is that when there is a ‘substitution of new law for old law that was reasonably clear,’ the new rule may justifiably be given prospectively-only effect in order to ‘protect the settled expectations of those who had relied on the preexisting rule.’”


The Foundation dismissed employee Borges who was a non-union employee. After a series of appeals, the NLRB extended the pre-existing Weingarten rule (“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”) to non-unionized employees. It also made that rule retroactive, holding the Foundation liable for Borges dismissal.


Whether the NLRB appropriately applied the Weingarten rule retroactively


No. The Court of Appeals for the District of Columbia Circuit (the Court), based on precedent, found that “at the time when this case arose, the Board’s policy on the application of Weingarten rights was absolutely clear – employees not represented by a union could not invoke Weingarten.” The Court emphasized the notions of “equity and fairness,” and that it would unfair “to require the Foundation to pay dam- ages to an employee who, without legal right, flagrantly defied his employer’s lawful instructions.”


“[R]etroactive effect is appropriate for ‘new applications of [existing] law, clarifications, and additions.’”

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