A bargaining unit employee’s statements to Agency representatives concerning his or her attempts to obtain union representation will likely be sufficient to trigger Weingarten even if the employee does not make an explicit request for representation in the underlying investigatory interview. A recent National Labor Relations Board (“Board”) decision issued last month seems to interpret Weingarten more liberally than ever before.
While federal agencies have held the traditional view that the right to union representation at a disciplinary interview arises “only in situations where the employee requests representation,” NLRB v. J. Weingarten, Inc., 430 U.S. 251, 256-57 (1975), a June 15, 2018 decision by the Board appears to loosen the standard for determining when Weingarten rights are triggered.
In Circus Circus Casinos, Inc. d/b/a Circus Circus Las Vegas and Michael Schramm, 2018 NLRB LEXIS 215, Case 28-CA-120975 (Jun. 15, 2018), the Board adopted the Administrative Law Judge’s finding that the employer violated a bargaining unit employee’s Weingarten rights by denying a union representative at a due process meeting concerning the employee’s suspension from work.
At the meeting, the employee mentioned to his employer that he had telephoned the union and left messages asking for help. The employee explained that he called the union three times and notified it of the scheduled meeting, but that nobody from the union showed up at the meeting.
Interestingly, at the meeting itself, the employee never actually asked for a union representative and did not specifically invoke Weingarten. Rather, the employee simply explained that he was present at the meeting without representation after unsuccessfully trying to obtain the union’s assistance.
The Board—in a 2-1 vote, with Chairman Ring dissenting—held that the employee’s statements were sufficient to put the employer on notice that the employee desired union representation. In the very short opinion, the Board cited to Houston Coca Cola Bottling Co., 265 NLRB 1488 (1982) and Consolidated Edison Co. of New York, 323 NLRB 910, 916 (1997) to support the finding that Weingarten requests are meant to be construed liberally.
The Board declared that “[n]o magic or special words are required [to trigger a Weingarten request] . . . . It is enough if the language used by the employee is reasonably calculated to apprise the [e]mployer that the employee is seeking such assistance.” Circus Circus Casinos, Inc., 2018 NLRB LEXIS 215 at **4-5.
The Board further explained that statements or inquiries such as “I would like someone there [who] could explain to me what was happening,” “[s]hould I have someone in here with me, someone from the union[?]” or whether a witness was needed at the meeting were all sufficient enough to trigger Weingarten rights.
Of course, the Board does not hear federal sector cases; the Federal Labor Relations Authority (the “Authority”) does. Notwithstanding, the Authority’s guidance on investigatory meetings is premised upon the same Weingarten Supreme Court case, and the “[t]he Authority has concluded that the ‘purposes underlying the Weingarten right in the private sector—promoting a more equitable balance of power and preventing unjust disciplinary actions and unwarranted grievances—also applies to the right to representation created by section 7114(a)(2)(B)’” of the Labor Statute governing federal sector labor-management relations.
Moreover, federal sector case law appears to already comport with the concepts of liberal construction emphasized in the Board’s Circus Circus Casinos, Inc. decision. For example, the Authority previously has held that “no specific format is required,” and that the employee’s request must merely “put the employer on notice that the employee desires representation.” See Norfolk Naval Shipyard, Portsmouth, Va, 35 FLRA 1069, 1074 (1990).
The types of statements made by the employee to his employer in Circus Circus Casinos, Inc. regarding unsuccessful attempts to obtain union representation would likely trigger Weingarten under the Authority’s test.
Going forward in the federal sector, the Authority will most likely construe Weingarten liberally and in a manner consistent with the Board’s Circus Circus Casinos, Inc. decision.
Accordingly, federal agency supervisors should realize that an employee’s references to attempts to obtain union representation should be sufficient to trigger the Weingarten right, even if the employee does not explicitly ask for a union representative at the particular meeting at issue. Agency officials should be cautious in situations where there are indications that an employee may have wanted union representation.
Jeffrey Lorek is a labor and employment litigation attorney for the Department of the Air Force and has published several articles on various labor and employment law topics. The views expressed in this article are solely the views of the author, and do not reflect the views of the government, the Department of Defense, the U.S. Air Force, or FedSmith.com.