August 10, 2020

Volume X, Number 223

August 10, 2020

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D.C. Circuit Rejects NLRB’s Expansion of Weingarten Rights

On June 12, 2020, the D.C. Circuit vacated a component of an NLRB decision that expanded employee rights under NLRB v. J. Weingarten. The D.C. Circuit rejected the NLRB’s determination that a mere statement of fact constituted an employee’s requests for union representation.

In a dispute between Circus Circus Casinos, Inc. (the “Employer”) and an employee, the Employer, pursuant to OSHA regulations and internal policies, required the employee to submit to a medical examination prior to participating in a fitting process for necessary equipment, to ensure the equipment would not jeopardize the employee’s safety. The employee refused to take the medical examination and returned to work. The Employer suspended the employee, pending an investigation into the employee’s refusal to take the mandatory medical examination. At the investigatory interview, the employee stated, “I called the union three times [and] nobody showed up, I’m here without representation.” The Employer proceeded with the interview, which culminated in the employee’s termination.

The employee filed an unfair labor practice charge against the Employer, claiming that the Employer violated his Weingarten rights by denying his request for union representation at the investigatory interview. The ALJ found in favor of the employee and the Board affirmed, stating that, “[s]ubsumed in the [employee’s] statement is a reasonably understood request to have someone present at the meeting.”

The Employer petitioned the D.C. Circuit to review the NLRB’s decision, arguing that the employee’s statement was not a valid request and was a serious expansion of employee Weingarten rights. The D.C. Circuit vacated the Weingarten component of the NLRB’s decision. The D.C. Circuit noted that an employee’s Weingarten rights do not arise unless the employee’s utterance is reasonably calculated to put an employer on notice that the employee desires union representation.

The NLRB’s holding broadened Weingarten rights by establishing that mere statements of fact meet Weingarten’s “reasonably calculated notice” standard. The D.C. Circuit rejected this expansion, holding that mere statements of fact do not put employers on notice of an invocation of Weingarten rights. The D.C. Circuit further noted that such an expansion robs employees of the right not to invoke Weingarten, as cautious employers will automatically assume the right applies to all investigatory meetings.

The D.C. Circuit re-iterated the established reasonably calculated notice standard, that valid requests come in the form of demands, questions, requests for a specific union representative, and certain requests for delay. Here, the employee’s statement of fact, that “I called the union three times [and] nobody showed up, I’m here without representation,” was insufficient to put the Employer on notice that the employee had invoked his Weingarten rights.

The D.C. Circuit’s decision protects employee rights to both invoke, and not invoke, Weingarten. Further, the decision preserves the reasonably calculated notice standard, ensuring that Weingarten rights are only triggered by request.

Copyright © 2020, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume X, Number 177

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About this Author

Lukas Moffett Employment Lawyer Hunton AK
Associate

As an associate in the firm’s labor and employment group, Lukas assists clients in employment litigation and general compliance matters.

Lukas focuses on litigation matters involving employment discrimination and the employer/employee covenant relationship. Lukas also helps employers comply with anti-discrimination laws by advising on employee termination and consultation procedures. In addition, he is involved in the firm’s pro bono efforts.

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Amber Rogers Employment Lawyer Hunton Andrews Kurth
Partner

Amber’s national practice assists clients with traditional labor relations and litigation, employment advice and counseling, and complex employment litigation.

Amber is Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, and is a trial lawyer who has extensive experience representing and advising clients in traditional labor relations, such as collective bargaining, representation elections, decertification elections, unfair labor practice charges, arbitrating grievances, contract administration and interpretation, and union avoidance strategies.  Amber also serves as the Hiring Partner for the firm’s Dallas office.

Amber also provides strategic day-to-day advice and counseling for clients. As a part of Amber’s partnership with clients to avoid litigation, she frequently conducts and coordinates sensitive corporate investigations, and provides training presentations for clients on a multitude of topics such as pay equity, anti-harassment and anti-discrimination, diversity and inclusion, labor relations, and issues related to the Family and Medical Leave Act and the Americans With Disabilities Act.

Amber’s litigation experience also includes regularly representing clients in wage and hour collective and class actions, trade secrets and post-employment restrictive covenant disputes, and complex employment discrimination.  Amber’s practice also focuses on defending employers before administrative agencies, such as the NLRB, EEOC, DOL, and OFCCP. Regarding the OFCCP, Amber’s work focuses on affirmative action work and audit defense, and advising and counseling clients on various diversity and inclusion policies and practices. Amber represents clients in all industries, and has particular experience working with clients in the energy and utilities, financial institutions, health care, food processing, staffing, manufacturers, transportation, and retail sectors.

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