Yesterday we explored a hypothetical employee named Bill who asked for legal representation to be present but was not himself a union member. We also explored the state of the Weingarten rights. Today we’ll look at how they apply to this situation, and what that means for Bill.
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Sorry, Bill . . .
Returning to our hypothetical, under the NLRB’s current interpretation of the law, Bill isn’t entitled to have “someone there” during an investigative interview because his workplace isn’t unionized. If his workplace were unionized, his statement would be considered a legitimate Weingarten request, even though he was vague when he asked for “someone” to be there and didn’t specifically refer to Weingarten or the union.
Weingarten requests are interpreted liberally, and Bill’s request was sufficient to put his employer on notice of his desire for representation. The NLRB has found that the following statements constitute requests for representation that trigger an employee’s Weingarten rights:
- “I would like someone that could explain to me what was happening.”
- “Should I have someone in here with me, someone from the union?”
- “Do I need a witness?”
Recent NLRB Decision Involving Weingarten Rights
In June 2018, the NLRB reaffirmed in Circus Circus Casinos Inc. the liberal standard for determining when an employee’s Weingarten request places his employer “on notice” of his request for representation. A union carpenter complained that he was being subjected to secondhand cigarette and marijuana smoke when he performed work in guest rooms at the Las Vegas casino and hotel. He alerted management of his health concerns and voiced his fear that he might fail a future drug test because of his exposure to secondhand marijuana smoke. There was evidence that management was frustrated with the carpenter over the issue, and a supervisor allegedly stated, “Well, you know what, maybe we just won’t need you anymore.”
Sometime later, the carpenter was directed to report to a clinic to be fitted for a respirator, which was required because parts of the casino were thought to contain asbestos. When remodeling those areas, employees had to wear special respirators to protect themselves from potential asbestos exposure. The carpenter showed up at the clinic but refused to complete the evaluation paperwork for the respirator until he spoke with a doctor. He testified that his anxiety issues contributed to his fear of wearing a respirator, but he didn’t want to tell anyone except a doctor.
After refusing the respirator evaluation, the carpenter was suspended pending an investigation. He was then directed to report for a meeting with management. He tried unsuccessfully to reach his union representative multiple times prior to the meeting. He claimed that upon entering the meeting, he stated, “I tried calling the union three times, and nobody showed up; I’m here without representation.” The meeting continued, and the carpenter was ultimately terminated for refusing the evaluation.
After lengthy litigation, the NLRB held that the carpenter’s statement that he had made three unsuccessful calls to the union was enough to constitute a request for representation under Weingarten. After that request, the employer was required to do one of three things:
- Grant the request for representation;
- Dispense with or discontinue the meeting; or
- Offer him the choice of continuing the interview unaccompanied by a union representative.
The NLRB forced the employer to reinstate the carpenter. The Board also required it pay him back pay, lost benefits, reimbursement for the tax consequences of his lump-sum back-pay award, and the costs for his job search, as well as post a notice of wrongdoing at its facility. And, of course, it had to pay its own attorneys’ fees to litigate the case.
Bottom Line
Under current law, nonunion employees are not afforded Weingarten rights, meaning a private-sector nonunion employer isn’t required to grant an employee’s request for representation during an investigatory interview. If you find yourself in this situation, follow your internal policies and procedures to ensure you take a uniform approach to meetings that could affect someone’s employment.
Unionized employers, on the other hand, must abide by Circus Circus case illustrates the low standard the NLRB will use to determine if an employee’s statement is a request for representation. The statement only has to be sufficient to put the employer on notice of the employee’s desire for union representation. Thus, Weingarten will be strictly applied, and even vague statements about representation should be treated as Weingarten requests.
Unionized employers should be very careful when requiring an employee to attend an investigatory interview. Failing to honor legitimate requests for representation in a union setting can be financially painful, as Circus Circus learned. As of now, nonunion employees do not have Weingarten rights, but given the way the law on representation can evolve, you should remain alert for changes to avoid similar costly mistakes.
Seth Thompson is an employment law attorney with Vogel Law Firm, practicing in the firm’s Bismarck, North Dakota, office. He is a contributor to North Dakota Employment Law Letter. He may be contacted at sathompson@vogellaw.com.