NLRB Weingarten Ruling
Could Affect Federal Sector Too
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
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
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
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
Circus Circus Casinos, Inc. d/b/a Circus Circus Las Vegas
and Michael Schramm, June 15, 2018
© 2018 Jeffrey J.
Lorek. All rights reserved. This article may not be reproduced without express
written consent from Jeffrey J. Lorek.
• NLRB • Weingarten