One area of labor relations that continues to vex practitioners is the scope of the so-called Weingarten rights.  NLRB v. J. Weingarten Inc., 420 U.S. 251 (1975).  Some 43 years after the Supreme Court set forth the right that represented employees are entitled to union representation when facing an interview that could lead to discipline, there still exist areas that are vaguely defined.  For instance, we saw that an employer’s search of an employee’s vehicle is not a “disciplinary interview.”  We also have seen have also seen that a fellow employee is not a “union representative for purposes of Weingarten.

What words must an employee utter to put the employer on notice that he or she wishes union representation?  A divided NLRB recently addressed this issue and ruled that an employee’s remarks that he had previously contacted the union about a scheduled interview was sufficient to constitute a request for a Weingarten representative.  In Circus Circus, Inc., 366 NLRB No. 110 (June 15, 2018), the NLRB was asked to evaluate whether an employee’s indirect statement about calling for union representation was sufficient to put the employer on notice that he wished to have a union representative at a disciplinary meeting.

The Employee Attempts but Fails to Reach His Union Representative

The facts of the case are fairly straightforward.  The employer required all employees to be fitted with respirators as part of an OSHA requirement.  An employee refused due to stated medical reasons and the employer started disciplinary proceedings.  The employer suspended the employee pending investigation.  The employer scheduled a “due process” meeting to discuss the issue and potentially issue discipline to the employee.  In advance of the meeting the employee called his union three times but did not hear back.  Upon entering the meeting, the employee discovered that no union representative was present and stated to the employer representatives, “I called the Union three times [and] nobody showed up, I’m here without representation.”  The employer continued with the meeting and the employee ultimately was discharged.

The employee filed NLRB charges over the discharge and included an allegation that his Weingarten rights had been violated.

After a trial the Administrative Law Judge concluded that the employee’s “statement constitutes a request for representation [because] [s]ubsumed in the statement is a reasonably understood request to have someone present at the meeting.”

The employer appealed.

Divided Board Concludes Employee’s Statement Was a Weingarten Request for Representation

On appeal, a two member majority (Pearce and McFerran) of the Board agreed with the Administrative Law Judge that the employee’s statement was tantamount to a request for representation noting:

Board law is clear that ‘[n]o magic or special words are required [to trigger a Weingarten request]…It is enough if the language used by the employee is reasonably calculated to apprise the [e]mployer that the employee is seeking such assistance.’  Houston Coca Cola Bottling Co., 265 NLRB 1488, 1497 (1982).

Chairman Ring dissented.  The Chairman noted that Weingarten rights arise only in situations “where the employee requests representation.”  The Chairman noted further:

As the majority’s discussion reveals, [the employee’s] efforts to secure a union representative were directed to the Union, not the Respondent.  To the latter, [the employee] said only that he had unsuccessfully tried to contact the union hall to obtain a representative and that he was attending the meeting without one.  He did not request an alternative representative, even though his shop steward worked right across the hallway.  Nor did he seek a delay so that a representative could be found.

Takeaways

This case is certainly open to debate and raises more questions than it answers.  For instance, why didn’t the union return the calls? Why did the employee not object to the continuation of the meeting?

On balance, if an employee mentions union representative at the beginning of a disciplinary interview but doesn’t expressly ask for one, it is probably best to clear up this issue before beginning the interview.  Such an inquiry could avoid litigation over this kind of issue.

 

Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.