A recent National Labor Relations Board decision – Circus Circus Casinos, Inc., 366 NLRB No. 110 (June 15, 2018) – has shed new light on what constitutes a unionized employee’s request for Weingarten assistance in an investigatory interview or disciplinary hearing. According to the long-established precedent set forth in NLRB v. J. Weingarten, Inc., an employee is entitled to assistance from a union representative when the employee reasonably believes that disciplinary action may result. This right to a union representative arises “only in situations where the employee requests representation.”
Circus Circus Casinos has broadened this standard by expanding what qualifies as a request for union representation in a disciplinary interview. In this decision, a temporary journeyman carpenter for Circus Circus Casinos was suspended pending an investigation. This employee called his union and left a message asking for assistance. The next day, an HR representative from his employer contacted him to provide the date for his due process meeting and told him that he could bring a union representative if he desired. The employee left additional messages with his union in which he provided the date and time of the due process meeting and again requested assistance. The employee never received a response from his union.
Immediately prior to his disciplinary meeting, the employee looked for a union representative to join him in the meeting but could not find one. He then went to the meeting and stated that he had “called the Union three times [and] nobody showed up, I’m here without representation.” The meeting continued, and the employee was eventually terminated.
In a 2-1 split decision, the Board held that the employee’s statement in the meeting constituted a request for union representation. Members Mark Gaston Pearce and Lauren McFerran agreed with the Administrative Law Judge’s reasoning that “[s]ubsumed in this statement is a reasonably understood request to have someone present at the meeting.” They also relied on the Board’s decision in Consolidated Edison Co of New York, in which the Board held that Weingarten requests are to be interpreted liberally and “need only be sufficient to put the employer on notice of the employee’s desire for union representation.” The Board ordered the employee’s reinstatement and awarded him back pay.
Chairman John F. Ring disagreed with the majority and instead concluded that the employee had not made a legally sufficient request for union representation to invoke his Weingarten rights. In Chairman Ring’s view, the employee had only directed his efforts to secure union representation toward the union and not his employer. The employee did not tell his employer that he would like a representative, nor did he inquire regarding whether one was needed. He also did not request an alternative representative or seek a delay in the meeting until a representative could be found.
Ultimately, the Circus Circus Casinos decision serves as a reminder to employers that Weingarten rights may arise even when an employee does not explicitly request union representation in a disciplinary meeting. An employee’s statement in passing that he or she does not have union representative can qualify as a request for union representation. If an employer receives even the slightest indication during a disciplinary meeting that an employee sought or desired union representation, then the employer should cancel the meeting until a union representative is available to participate. Given the Board’s latest position, employers are best served by using an overly-cautious approach to unionized employees’ Weingarten rights.