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NLRB Issues Surprising Weingarten Decision

Volume 17, Issue 15
July 23, 2018

In June 2018, the National Labor Relations Board (NLRB or Board) ruled that an employer violated an employee's Weingarten rights by continuing a disciplinary "due process" meeting without union representation even though the employee did not directly request a representative. The Board ruled that the employee's ambiguous statement about trying to contact the union was sufficient to put the employer on notice that he desired union representation. The Board's decision, in Circus Circus Casinos, Inc., 366 N.L.R.B. No. 110 (2018), clearly puts the burden on the employer to proceed with extreme caution in this area, especially when the employee's desire for representation is ambiguous.

The employee, Michael Schramm, worked for Circus Circus as a temporary carpenter hired for special projects. He was directed to obtain a personal respirator mask pursuant to the employer's policy. To obtain an exemption from the respirator requirement, Schramm refused to proceed with the exam and fitting until he could speak to the doctor. He was suspended pending investigation and given the phone number for the union. Schramm called the union hall and left messages asking for assistance with his suspension and upcoming due process meeting but did not receive a return call. He did not ask the union steward for assistance before his due process meeting although he passed the carpenter's shop on his way to the meeting. Instead, when he appeared for his due process meeting, he stated (as the Administrative Law Judge found): "I called the Union three times [and] nobody showed up. I'm here without representation." The employer proceeded to conduct the meeting and ultimately discharged Schramm.

The Administrative Law Judge found, and a majority of the Board agreed, that Circus Circus violated Schramm's Weingarten rights by continuing the due process meeting without a union representative. Under NLRB v. J. Weingarten, Inc., an employee may request representation at an investigatory interview which the employee reasonably believes will result in disciplinary action. The right to representation arises only when the employee requests representation. However, the request need not be in precise words; instead it must be sufficient to put the employer on notice of the employee's desire for union representation. Accordingly, questioning an employer about whether a union representative should be obtained (e.g., "Do I need to get somebody in here?") has been deemed sufficient to trigger an employee's Weingarten rights as has a request that "someone" be present (e.g., "I would like to have someone here that could explain to me what is happening"). The Board found Schramm's statements that he had called the union three times and that "nobody showed up" was sufficient to constitute a request for union representation at the meeting. As such, the Board determined the employer's decision to continue the meeting without a union representative violated the National Labor Relations Act.

The Board did not change the standard for Weingarten here but applied it liberally. This case serves as a good reminder of the need to proceed with caution when meeting with employees in unionized bargaining units to investigate discipline matters. Rescheduling or delaying a meeting to provide representation is advisable if the employee mentions the union or the need for a witness. Employers can also consider asking an employee to affirm in writing their decision to proceed with a meeting alone. If you have questions about this case or would like to discuss your procedures, please contact a KZA attorney.

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.