Failure to Offer Union Representation for Interview Wasn’t Unlawful

By Rosemarie Lally, J.D. September 16, 2020
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circus circus casino

A hotel that failed to offer union representation to a carpenter for an investigatory interview did not commit an unfair labor practice, because the employee had not affirmatively requested representation, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled.

In vacating a National Labor Relations Board (NLRB) order, the court also ruled that the NLRB had not properly applied the test for mixed-motive termination in finding that the hotel had unlawfully terminated the employee for activity protected under the National Labor Relations Act (NLRA) rather than for alleged workplace misconduct.

The employment dispute arose shortly after Circus Circus Casinos hired a carpenter on a temporary basis to upgrade guest room security. At a weekly safety meeting, the employee expressed concern that secondhand exposure to marijuana smoke in guest rooms could cause employees to test positive for illegal drugs. He and a co-worker rejected the department head's assurances that exposure was insufficient to produce a positive test result, and the encounter grew tense. Both carpenters alleged that the manager stated, "Maybe we just won't need you anymore," but none in attendance could corroborate this.

Several weeks later, when scheduled for a medical exam mandated by the Occupational Safety and Health Administration (OSHA) and related to being fitted for a respirator, the employee refused to fill out the preliminary paperwork without first speaking with the doctor. He was suspended for refusing the exam, and his manager scheduled an investigatory review.

He appeared for the interview, allegedly stating, "I called the union three times, and nobody showed up. I'm here without representation."

Witnesses deny that he made this statement but acknowledge that they continued the interview without offering him union representation. The employee, accompanied by a union steward, later met with his manager and human resources and was terminated for violating company rules against insubordination and refusing to submit to mandatory testing.

The carpenter filed unfair labor practice charges with the NLRB. An administrative law judge found that the employer had violated three standards established under the NLRA:

  • The manager's alleged threatening comment interfered with NLRA rights by discouraging employees from voicing shared concerns about the terms and conditions of employment.
  • The employee's statement at the beginning of the investigatory interview was a request for union representation under the Weingarten rule, which was ignored.
  • Under the test for mixed-motive termination, the casino had unlawfully suspended and terminated him for protected activity and not for his alleged misconduct.

The NLRB adopted the administrative law judge's decision and ordered the employee's reinstatement.

[Need help with legal questions? Check out the new SHRM LegalNetwork.]

Taking up the hotel's petition for review, the appellate court noted that to prove a violation of the Weingarten rule, the following must be shown:

  • The employee made a valid request for a union representative to be present during an investigatory review.
  • The worker reasonably believed the interview might result in disciplinary action.
  • The employer compelled the employee to attend the interview without union representation. Stating that the NLRB "acted in an arbitrary and capricious manner by significantly altering the test for valid Weingarten requests," the court said the Weingarten allegation should have been dismissed because the employee did not affirmatively request union representation.

"None of the board's prior decisions construe Weingarten's reasonably calculated notice standard broadly enough to cover mere statements of fact," the court said. "In the absence of an affirmative request, the board must dismiss Weingarten charges because there is no protected activity by the employee and the NLRA does not apply. … If 'requests' were interpreted as broadly as the board elected to do here, the Weingarten right would transform from one that must be invoked by an employee to one that cautious employers must assume automatically applies to all covered investigatory meetings."

Turning to the issue of mixed-motive termination, the court analyzed whether the NLRB had properly examined whether the employer reasonably believed misconduct occurred and had a prior consistent practice of enforcing rules against such misconduct. The court held that the board failed to assess whether the employer reasonably believed the misconduct happened.

The company decided to suspend and discharge the employee based on reports by medical personnel that he had refused to take the required medical exam after the company's subsequent investigation failed to reveal any contrary facts, the court said. However, the NLRB reasoned that if the hotel's true concern was that the employee be tested, he would have been allowed to speak to the doctor prior to testing or sent back for testing before discipline.

The court rejected the board's reasoning, stating, "Rather than assess whether it was reasonable for Circus to believe [the employee] committed the misconduct in question, the board adopted factual findings about what happened at the clinic." This was immaterial, the court said, because the employer had no reason to doubt the reports of medical personnel and was entitled to rely on them.

Stating that the NLRB also failed to assess whether the employer's decision to terminate the employer was consistent with company policy and practice, the court noted that the company's written policies make insubordination and refusal to submit to a physical examination terminable offenses. Further, the employer had presented testimony that no employee had ever refused to submit to an OSHA medical exam and identified three earlier terminations for refusing to submit to a mandatory drug test. The court concluded that the NLRB "failed to engage with this record evidence and thereby acted arbitrarily and without substantial evidence on the record as a whole."

Finally, the court found insubstantial evidence to support the finding that the employee was threatened by his manager at the workplace safety meeting. Stating that "the board engaged in unreasoned decision-making by finding unfair labor practices without substantial evidence," the appellate panel vacated the board's order, granted the employer's request for review in full, and remanded the unlawful termination finding for further consideration.

Circus Circus Casinos Inc. v. National Labor Relations Board, D.C. Cir., No. 18-1201 (June 12, 2020).

Professional Pointer: The court found that an employee's mere statement that he is appearing without representation is not considered a valid request for representation upon which an employer must act. The holding also makes clear that, in potential mixed-motive cases, an employer should carefully examine the facts underlying its "reasonable belief" concerning misconduct and be certain that any contemplated disciplinary actions are consistent with its prior enforcement practice in cases of similar misconduct.

Rosemarie Lally, J.D., is a freelance legal writer based in Washington, D.C.

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