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NLRB Finds Employer's SPI Constitutes Adverse Action After Employee Invokes Weingarten Rights

Volume 14, Issue 17
August 31, 2015

On August 20, 2015, in Bellagio, LLC, 362 N.L.R.B. No. 175, the National Labor Relations Board (NLRB) determined that the Bellagio violated an employee's rights under the National Labor Relations Act (NLRA) by placing an employee on a suspension pending investigation (SPI) after he refused to complete a written statement without the assistance of a union steward.

Under the NLRA, an employee has the right, upon request, to have a union representative in an investigatory interview that he reasonably fears may result in his discipline. (Arising from the United States Supreme Court case of NLRB v. J. Weingarten, 420 U.S. 251 (1975), this right, and its corresponding principles, are now commonly referred to as "Weingarten rights.") Once an employee invokes his "Weingarten rights," the employer has only three lawful options: (1) grant the request, (2) discontinue the interview, or (3) offer the employee the choice of meeting without a representative or of no meeting at all.

The Bellagio sought to interview a Bellman regarding a guest's complaint. The Bellman requested union representation but no steward could be located. The supervisor properly stopped questioning the Bellman about the incident. The supervisor then asked the Bellman to complete a written statement about the incident with the guest. The Bellman refused to do so without union representation and stated that he would instead return to work. The supervisor then placed the Bellman on SPI. The next day, the Bellman attended a meeting with Employee Relations, the Department Director, and a union steward. He completed a statement and received a verbal warning because of his conduct toward the guest. He was returned to work and compensated for the pay lost during the SPI.

The NLRB determined that the Bellagio violated the Bellman's Weingarten rights because it placed the Bellman on SPI for refusing to complete a written statement without union representation. The NLRB determined that the written statement was part of the Bellagio's investigatory interview of the Bellman. The NLRB further held that the SPI constituted an adverse action taken because of the Bellman's protected conduct and not because of the guest's complaint.

The NLRB's decision is an example of how an employer's attempt to do the right thing can still lead to liability when subjected to the scrutiny of an outside agency. Here, the supervisor sought to control his investigation while respecting the Bellman's right to representation. The NLRB determined, however, that the supervisor sought to punish the Bellman by placing him on SPI, despite the fact that a SPI is not a disciplinary action and was likely intended to serve as "a functional pause in the investigation." Given the NLRB's willingness to see an SPI issued after protected conduct as an adverse action, employers who use SPIs as part of their investigatory process are wise to consider placing an employee on SPI before any attempt is made to interview the employee. In this way, union representation can be scheduled and the employer can provide due process while still maintaining control over its workforce and investigations.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.