Epilepsy Foundation of Northeast Ohio v. National Labor Relations Board

The National Labor Relations Board (NLRB) (plaintiff) found the Epilepsy Foundation of Northeast Ohio (the foundation) (defendant) had committed unfair labor practices by discharging two employees for participating in protected union activities. A Supreme Court decision had already recognized that the National Labor Relations Act (NLRA) protects employees’ right to union representation during investigatory interviews in unionized but not other workplaces. The NLRB extended the rule to nonunion workplaces relying heavily on one of its own prior decisions, then applied the new rule retroactively to hold the foundation liable. The NLRB had previously changed positions several times on the issue but gave a clear and reasonable rationale for its decision. Instead of requesting rehearing, the foundation petitioned in federal circuit court challenging the NLRB’s decision. The foundation argued for the first time in its appellate brief that the NLRB’s interpretation of federal labor laws unconstitutionally restricted employer speech. Counsel for the foundation also argued for the first time at oral argument before the circuit court that the facts did not implicate employee rights to union representation, even if those rights extended to nonunion workplaces. Finally, the foundation argued the NLRB had not adequately explained its decision. The NLRB cross-petitioned to enforce its order.