October 22, 2018

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Employee’s Failed Attempt To Secure Union Representation Sufficient Notice of Weingarten Request, Divided NLRB Rules

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.

© 2018 Proskauer Rose LLP.

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About this Author

Mark Theodore, Employment Attorney, Proskauer Rose
Partner

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. 

Some highlights of his career include:

  • Successfully negotiated the first contract for a shipping agency during constant threat by union to shut down Port of Los Angeles

  • Successfully defended a major theme park when the NLRB sought bargaining order after the union...

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