Labor & Employment Law Daily Reciting facts about past communication attempts with union didn’t trigger Weingarten rights
Tuesday, June 16, 2020

Reciting facts about past communication attempts with union didn’t trigger Weingarten rights

By Ronald Miller, J.D.

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.”

Finding that an employee did not make an affirmative request for union representation prior to an investigatory interview, the D.C. Circuit concluded that the NLRB should have dismissed an allegation that his employer violated his Weingarten rights. The appeals court agreed with the employer 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. The employee’s reciting of facts regarding his past attempts to communicate with the union was not “reasonably calculated” to put the employer “on notice of his desire for union representation. Chief Judge Srinivasan filed a separate opinion concurring in part and dissenting in part (Circus Circus Casinos, Inc. dba Circus Circus Las Vegas v. NLRB, June 12, 2020, Rao, N.).

Secondhand marijuana smoke. The employer, a casino, hired the employee, a carpenter, on a temporary basis to upgrade doorjam security in its hotel guest rooms. The employee was represented by a union. In November or early December 2013, the employee and about 12 other department employees attended a mandatory weekly safety meeting. During the meeting, a coworker brought up a concern about secondhand exposure to marijuana smoke in guest rooms that could cause employees to test positive for illegal drugs. The employee echoed this concern. The employees pressed management for additional comments from the employer and refused to accept assurances that their exposure was insufficient to produce a positive test result.

Several weeks later, the employer initiated an investigation into whether the employee violated company policy with respect to a medical exam mandated by OSHA. Pursuant to OSHA regulations, the employer provided custom-fit regulators to employees likely to encounter airborne hazards during their work. Because the regulators can aggravate certain underlying health conditions, a medical service provider must review an employee’s medical history and perform a medical examination prior to the custom-fitting process.

Testing appointment. After the employee arrived at an onsite clinic for his testing appointment on December 10, he refused to complete preliminary paperwork without first speaking with the doctor. When he was unable to see the doctor, he left the appointment and returned to work. The employee was suspended pending an investigation into his refusal to take the medical exam. The employee was scheduled for an investigatory interview and provided a phone number to contact his union if he desired a union representative. He twice unsuccessfully attempted to contact the union.

On December 13, the interview was conducted with the employee without union representation. In a subsequent meeting, the employee, who was accompanied by a union steward, was terminated for violating company rules against insubordination, and for refusing to submit to mandatory testing.

Unfair labor practice charges. Thereafter, the employee filed unfair labor practice charges with the NLRB. The General Counsel issued a complaint alleging the employer interfered with NLRA rights during the safety meeting by discouraging employees from expressing concerns about terms and conditions of employment, ignoring the employee’s request for union representation during the investigatory interview, and unlawfully suspending and terminating the employee because of protected activity. The Board adopted an administrative law judge’s decision, and the employer was ordered to reinstate the employee.

The employer petitioned for review of the Board’s unfair labor practice findings and its refusal to reopen the record to additional evidence impeaching the employee’s corroborating witness.

Notice standard. In this case, the Board purported to apply three well established standards to determine that the employer committed unfair labor practices by unlawfully threatening, investigating, suspending, and terminating the employee. First, the Board concluded that the employer violated the Weingarten rule by denying the employee’s request for union representation at the investigatory meeting. The Board asserted that 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.” It further concluded that the employer unlawfully compelled the employee to attend the interview without union representation when it failed to offer him the choice between continuing unassisted or foregoing the interview altogether. The Board explained that “subsumed in the statement is a reasonably understood request to have someone present at the meeting.”

However, the appeals court concluded that the Weingarten allegation should have been dismissed because the employee did not make an affirmative request for union representation. 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.” Valid requests may take the form of straightforward demands; questions about the need for assistance; or requests for delay or an alternative representative. In this case, the employee merely recited facts about his past communication with the union and the circumstances of his attendance at the meeting.

Employee choice. None of the Board’s prior decisions construed Weingarten’s reasonably calculated notice standard broadly enough to cover mere statements of fact. As there was no affirmative request, the employer was not required to offer the employee representation or to take any action under the Weingarten rule. By deviating from established practice, the Board expanded the reach of Weingarten without accounting for employee choice. Weingarten’s emphasis on affirmative employee requests serves not only to notify the employer that the employee is invoking statutory rights, but also to protect the employee’s choice not to invoke the right when he believes that doing so would be against his interests. Thus, one consequence of the Board’s finding that the employee’s request was “subsumed” in a simple statement of fact would be to limit employee choice.

Consistent with the Board precedent, the appeals court held that Weingarten requires an employee to affirmatively request union representation in a manner reasonably calculated to put the employer on notice. On this record, the employee’s statement of fact standing alone was insufficient to trigger the protections of the Act.

Suspension and termination. Next, the court reviewed the Board’s conclusion under Wright Line that the employer violated Section 8(a)(1) of the Act by suspending and terminating the employee because of protected activity. Purporting to apply Wright Line to the facts of this case, the Board concluded that the employer acted with animus against the employee’s exercise of NLRA rights and rejected the employer’s explanation.

The appeals court agreed with the employer that the Board misapplied Wright Line by failing to consider its rebuttal case in line with the D.C. Circuit’s decision in Sutter East Bay Hospitals v NLRB . Wright Line’s second prong required the Board to consider first, whether the employer “reasonably believed” the employee committed the acts supporting discipline, and second, whether the decision was consistent with the employer’s “policies and practice.”

Contrary to longstanding precedent, the Board rejected the employer’s rebuttal case without addressing evidence relevant to Wright Line’s second prong. First, the Board failed to assess whether the employer reasonably believed the employee committed the misconduct in question. The employer suspended and terminated the employee because he failed to take a required medical exam. An investigation revealed no contrary facts. The employer had no reason to doubt the reports regarding the employee’s conduct.

Second, the Board failed to assess whether the decision to terminate the employee was consistent with company policy. Company policy made “insubordination” and “refusal to submit to a physical examination” terminable offenses. Without addressing whether these rules covered the employee’s conduct, the law judge analyzed OSHA regulations and the employer’s testing policy to conclude the employee had a right to discuss the content of the medical questionnaire with the doctor. The appeals court failed to see the relevance of the observation. Because the Board failed to engage in this record evidence, it acted arbitrarily and without substantial evidence in finding that the employer violated Section 8(a)(1).

Accordingly, the appeals court granted the employer’s petition for review in full of the Board decision and denied the Board’s cross-application for enforcement.

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