By:  Jennifer L. Mora

Seyfarth Synopsis: In Circus Circus Casinos Inc. v. NLRB, No. 18-1201 (June 12, 2020), the US Court of Appeals for the DC Circuit denied the National Labor Relations Board’s cross-application for enforcement of its decision, where the Court found, among other things, that the Board had “significantly alter[ed] the test for valid Weingarten requests to cover the facts of this case.”

The employee was a journeyman carpenter represented by the United Brotherhood of Carpenters and Joiners of America (“Union”). During a safety meeting, the employee and others raised concerns that secondhand exposure to marijuana smoke in guest rooms could cause employees to test positive for illegal drugs. Several weeks later, the casino initiated an investigation into whether the employee violated company policy with respect to a medical exam mandated by the Occupational Safety and Health Administration. The employee refused to submit to the examination, which the casino considered a violation of company policy. The casino suspended him pending investigation. When a human resources representative contacted the employee to set up the interview, she provided a phone number for the Union in the event the employee desired to have a Union representative present at the meeting. The employee attempted to contact the Union twice by phone, but to no avail.

The employee returned to the facility for the interview. The department head and two human resources representatives attended on behalf of the casino. According to the employee, he looked around the hallway for a Union representative before entering the meeting and began by stating: “I called the Union three times [and] nobody showed up, I’m here without representation.” The casino’s witnesses denied the employee made this statement at the beginning of the meeting but acknowledged continuing the interview without offering him union representation. At the termination meeting held the same month, a Union steward was present with the employee. At that time, the casino advised the employee that it was terminating him for insubordination and refusing to submit to mandatory testing.

The NLRB found the casino violated the Act by, among other things, denying him a Weingarten representative during the investigatory interview. According to the Board, the employee triggered Weingarten by stating at the beginning of the meeting: “I called the Union three times [and] nobody showed up, I’m here without representation.” As the Board explained, “[s]ubsumed in the statement is a reasonably understood request to have someone present at the meeting.” Further, the Board concluded the casino unlawfully compelled the employee to attend the meeting when it failed to offer him the choice between continuing unassisted or foregoing the interview altogether.

The Court disagreed and held that the Board “acted in an arbitrary and capricious manner by significantly altering the test for valid Weingarten requests to cover the facts of this case.” According to the Court, to invoke the Weingarten right, an employee’s utterance must be “reasonably calculated” to put the employer “on notice of the employee’s desire for union representation.” Under the “reasonably calculated” notice standard, the Board has long required an employee to affirmatively request representation in order to invoke the protections of the Act. The Court gave examples of valid requests: a straightforward demand (“I need a Union Steward.”); questions about the need for assistance (“[S]hould [I] have a union representative present[?]”); or requests for delay or an alternative representative. In the case before it, the Court wrote:

[The employee] merely recited facts about his past communication with the Union and the circumstances of his attendance at the meeting: “I called the Union three times [and] nobody showed up, I’m here without representation.” Any affirmative request by [the employee] was made to the Union rather than to a [company] representative—there was no valid request here to trigger Weingarten’s requirements.

As a result, according to the Court, “[t]he Weingarten allegation should have been dismissed because [the employee] did not make an affirmative request for union representation.” It concluded its discussion about the Weingarten violation with a reminder as to the applicable standard: “Weingarten requires an employee to affirmatively request union representation in a manner reasonably calculated to put the employer on notice,” which can take the form of demands, questions, or related requests for delay or for a specific representative. (The Court also denied enforcement of the Board’s finding that the casino terminated the employee in retaliation for exercising protected union activities.)

The decision serves as a reminder to employers that the validity of an employee’s request for Weingarten assistance often turns on the nature of the request and the factual circumstances surrounding it. Given the broad remedies available if an employee fails to grant a Weingarten request, employers must exercise caution and carefully weigh the adequacy of an employee’s request. After receiving any type of notice that an employee desires representation, employers should consider delaying or terminating the interview until a union representative or alternative representative can be identified, or simply canceling the interview and proceeding with discipline consistent with any existing labor agreements.