When conducting investigations of employees in a unionized workforce, employers often feel like the lion tamer in the cage with nothing but a whip and stool between them and legal jeopardy. Unfortunately, a recent decision by the National Labor Relations Board, In re Circus Circus Casinos, may have just taken the stool away and, in doing so, created a real circus.
The National Labor Relations Act has been interpreted to allow employees to request preferred union representation for investigatory interviews that may reasonably lead to discipline. Up until [this] Circus, this right was understood to arise only if an employee requested representation. Moreover, it was well confirmed that the employee’s selection of a representative could not be used to delay an employer’s investigation. In fact, as recently as September 2017, when the NLRB released to the public an advice memorandum addressing Weingarten rights, in which it noted that:
“[I]f the employee requests an unavailable representative, it is the employee’s obligation to request an alternative available representative in order to remain under Weingarten’s protections; the employer is not required to postpone the interview, secure an alternate representative, or otherwise accommodate the employee’s specific request.”
Nonetheless, in Circus Circus, the panel broke with these seemingly settled principles.
So, what led to the three-ring circus of Circus Circus? First, employer directed an engineering department temporary employee to be fitted with a respirator to comply with OSHA regulations. Citing anxiety, the employee advised the third party that was fitting the employee that he wanted to speak with a doctor. The third-party denied this request and advised the employer that the temporary employee refused to cooperate. The employer suspended the employee pending an investigation.
Subsequently, the employer’s HR representative spoke with the employee, informing him that he was to report for a “due process” meeting the next day. The HR representative advised the employee “that if he wanted Union representation that he needed to bring the steward with him.” The employee repeatedly called and left a message with his union about representation for the meeting, but he never received a return call.
The day of the meeting, the employee appeared at the employer’s facility, walking past where the union steward worked. The employee, however, did not attempt to speak with the shop steward. Instead, the employee looked around the HR representative’s office before entering, allegedly searching for a union representative. Nevertheless, no union representative was there. When the meeting began, everyone agreed that the employee stated:
“I called the Union three times [and] nobody showed up, I’m here without representation.”
After the meeting, the employee was separated. The employee would later claim that he told the employer’s representative that he wanted the union at the meeting and, moreover, the representative told him he did not need anyone present because the matter was not a disciplinary action. The employer’s representative denied these allegations.
Focusing on the employee’s statement that he attempted to reach the union, the NLRB panel, in a 2-1 decision concluded that this statement was, in fact, a request for representation. Alluding to the fact that no magic words were needed to invoke Weingarten rights, the majority decided that the employee’s statement about his unsuccessful attempt to reach a representative—standing alone—was sufficient to invoke Weingarten rights. The NLRB affirmed the administrative law judge’s order of reinstatement and backpay.
Although Circus Circus Casinos has since appealed this decision, employers will still be well-served to tread carefully when conducting employee investigations in the interim—lest they wake the lion. As such, employers may want to consider any statement by a union employee referencing their union, their steward, a witness, or a representative as invoking Weingarten rights. A failure to do so may put an employer at risk of taking a nasty bite in the form of reinstatement or back pay.