More than 40 years after the U.S. Supreme Court's decision in NLRB v. Weingarten Inc., the National Labor Relations Board's (NLRB) recent decision in Circus Circus Casinos Inc. serves as a good reminder for employers regarding their obligations under Weingarten to permit union representation upon request during investigatory interviews that could result in disciplinary action being taken against an employee. The Circus Circus Casinos decision deals principally with what should be considered a request for representation and makes clear that the Trump-era NLRB is not necessarily easing its scrutiny of employer actions.

In Weingarten, the Supreme Court in 1975 held that an employee in a union-represented workforce is entitled, upon request, to the assistance of a union representative during an interview that the employee reasonably believes could result in disciplinary action.

Fast forward 43 years to the NLRB's 2-1 decision in Circus Circus—with Chairman John F. Ring dissenting—in which the Board affirmed a decision reinstating an employee it found provided adequate notice to his employer of his desire for union representation at a disciplinary interview, but was interviewed without a union representative present.

The facts found by Administrative Law Judge Mary Miller Cracraft in her 2014 decision were as follows:

When the employee was contacted by Human Resources to appear for an investigatory interview, the HR representative advised the employee that if he wanted union representation, he should bring the union steward to the interview, and provided the employee with the telephone number for the union hall.

The employee did not contact his union steward, but called the union hall and left a message—which was not returned.

The employee called the union hall twice more with the same result. On the day of his interview, the employee walked by the union steward's office—which was across the hall from the interview location—but did not make contact. When the employee appeared for his interview, he said that he had called the union but no one was available, and he was therefore attending "without union representation." The employee did not request that the interview be delayed or that he be permitted to ask his union steward to attend. The employer did not advise the employee that he could choose not to proceed without the union. The interview went forward, and the employee was subsequently terminated from his position.

The NLRB treated the employee's statement that he was "without union representation" as a demand for union representation triggering Weingarten rights. Finding that the employer violated the National Labor Relations Act by failing to advise the employee that he could choose to go forward with the interview without representation or refuse to be interviewed, the Board ordered that the employee be reinstated with full back pay.

The Board's decision in Circus Circus Casinos Inc. serves as a reminder to employers that even ambiguous statements by an employee may be deemed a request for representation, even from an NLRB that many expect to take a more employer-friendly approach. When faced with what might be deemed a request for representation, employers have three choices:

• Grant the request and wait for representation;

• Give the employee the option of continuing the interview unrepresented or forgoing the interview altogether; or

• Deny the request and terminate the interview.

Employers should remember to err on the side of caution when deciding how to proceed when unionized employees make comments about seeking union representation but do not specifically request to have a union representative present or bring a union representative with them.

Ballard Spahr's Labor and Employment Group monitors changes in law and policy of the National Labor Relations Board and routinely assists clients in navigating and preparing for compliance with labor decisions and policy.


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