Politicization, Chaotic Policy, and Trip Wires: Problems with Epilepsy Foundation
Isaac S. Wofford | 2002 U. Ill. L. Rev. 1427
In this note the author thoughtfully explores the issue of whether Weingarten Rights should be extended to nonunion employees. Without settling upon a definitive answer to that question, this note suggests that Epilepsy Foundation, the recent National Labor Relations Board ruling which extended Weingarten Rights to nonunion employees, was decided too hastily and without due regard for precedent. The author’s skepti-cism of the Board’s decision to overrule fifteen years of precedent is based on his review of the Weingarten decision and the numerous Board rulings that refused to extend Weingarten Rights to nonunion employees. In addition, the author takes a fresh look at the text of, the history of, and policy behind the National Labor Relations Act. Partially discounting the claims of some critics that Epilepsy Foundation creates a “trip-wire” over which employers will stumble and inadvertently burden the rights of employees, the author cautions that unpredictable Board decisions and an inability to rely with confidence on established precedent are the real threats to the rights of employers and employees. This note suggests that the issues raised by Epilepsy Foundation cannot be finally put to rest until these “rights” are codified into rules that are more resistant to political whim than the current practice of case-by-case policy determination.