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.  Continue reading this entry at Littler's Healthcare Employment Counsel.