The recent split decision of the National Labor Relations Board (NLRB) in Circus Circus Casinos, Inc., 366 NLRB No. 110 (June 15, 2018), is a reminder that the validity of an employee’s request for Weingarten assistance at an investigatory interview or disciplinary hearing often turns on the nature of the request and the factual circumstances surrounding it.
Under Board and Supreme Court precedent in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), an employer is required to accept an employee’s request for the presence of a union representative or other third party at a meeting which the employee reasonably believes may result in discipline. However, it is the employee’s responsibility to inform the employer of the request; the employer is not required to divine the desire for representation unless reasonably so informed by the employee. See Weingarten, 420 U.S. at 257 (the right to union representation at a disciplinary interview arises “only in situations where the employee requests representation”).
The adequacy of an employee’s request turns on the facts in each case. Given the broad make-whole remedies available for an employer’s failure to allow requested representation, employers must carefully weigh the legal adequacy of an employee’s notice of a desire for representation. However, the NLRB’s Circus Circus Casinos decision demonstrates that an employee does not even have to address the request to the employer in order to trigger Weingarten rights.
In Circus Circus Casinos, a divided three-member panel undertook a factual analysis of whether an employee had provided adequate notice to the employer of his desire for representation at a disciplinary interview. On the day of the meeting, December 13, 2013, the employee told the employer for the first time that he had unsuccessfully requested union representation (having called the union on three occasions requesting such representation) and that he would therefore be alone and not represented at the meeting. The employee did not ask the employer for union representation, tell the employer that he would like the presence of a representative, or ask whether he needed or should have a representative. Neither did the employee request an alternative third-party representative or seek a delay in the disciplinary interview to secure one. He did not even express a reluctance to go forward with the disciplinary interview, only informing the employer that he would be unrepresented. He merely told the employer that he had unsuccessfully tried to secure representation from the union after repeated requests. His requests were directed solely to the union, not to the employer. When his employment was terminated, the employee filed an unfair labor practice charge with the NLRB.
The Board’s Decision
Under those circumstances, NLRB Chairman John F. Ring concluded that the employee had not made a legally sufficient request to the employer to provide adequate notice of his desire for Weingarten rights. Ring dissented from his Board colleagues, Members Mark Gaston Pearce and Lauren McFerran, who found that the mere mention of the employee’s inability to secure union representation served as a signal that the employee desired representation. The panel majority relied on Board precedent supporting a liberal interpretation of Weingarten requests, which, according to Consolidated Edison Co. of New York, Inc., 323 NLRB 910, 916 (1997), “need only be sufficient to put the employer on notice of the employee’s desire for union representation.”
Having found that the employer had violated Section 8(a)(1) of the National Labor Relations Act by failing to honor the employee’s unstated request for representation, the Board ordered make-whole remedies including the employee’s full reinstatement to his former position or its equivalent with full back pay, which had been tolling since 2013, and reimbursement of job-search and interim-employment expenses.
Circus Circus Casinos did not create new Board law, but it is a significant reminder for employers that Weingarten rights will be strictly applied and enforced even without an employee’s request for union representation being addressed to the employer. Informal statements such as “I tried to get the union to accompany me but failed, so I will be alone” now replaces the formality of an actual request for representation.
After receiving a signal that the employee desired representation, the employer should have considered delaying or terminating the interview until a union representative or alternative representative could be identified, or simply canceling the interview and proceeding with discipline if that comported with the collective bargaining agreement.
Ogletree Deakins’ Traditional Labor Relations Practice Group and Ogletree Governmental Affairs, Inc. will keep readers apprised of developments at the NLRB. For a more in-depth discussion of these and other issues, please join us at our Labor Law Solutions seminar in Las Vegas, Nevada, December 5–7, 2018.