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The past several years have seen some unexpected decisions from the National Labor Relations Board (NLRB). At times, decisions from the NLRB have been contrary to long-standing precedent and not without controversy. In a recent opinion, the U.S. Circuit Court of Appeals for the District of Columbia criticized the current decision-making of the NLRB in a matter involving the exercise of Weingarten rights—which relate to having a union representative present at a disciplinary meeting.
Gabor Garner was a bellman for the Bellagio hotel in Las Vegas. The Bellagio maintained a policy against bellmen soliciting tips from guests. In May 2013, a customer alleged that Garner violated this policy. The hotel scheduled a meeting with Garner to discuss the complaint.
Garner asked if the meeting could result in discipline. When told that it might, he requested the presence of his union representative. Garner declined an invitation by the hotel for him to try to locate a representative. Instead, two Bellagio managers attempted to locate a union representative, to no avail. Garner was thereafter asked to complete a written statement concerning the complaint without a representative present. When he refused, he was placed on a suspension pending investigation.
When Garner left the meeting, he went to a heavily trafficked area of the building to collect his belongings. A Bellagio manager saw Garner talking to another employee in that area, told Garner to leave the premises and followed him toward the building exit. The following day, the Bellagio concluded its investigation and disciplined Garner with a verbal warning. The hotel compensated him for his time lost during the suspension.
Garner filed an unfair labor practice charge with the NLRB challenging the circumstances surrounding his discipline. The NLRB found that the Bellagio had unlawfully denied Garner his Weingarten rights, retaliated against him by issuing a suspension and surveilled his protected activities. On review, the federal appeals court rejected the NLRB's conclusions.
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With regard to the Weingarten claim, the court noted that an employer faced with a request from a union-represented employee for representation during an investigatory interview that may lead to discipline has three options: 1) grant the request, 2) end the interview or 3) offer the employee a choice between having an interview without a representative or forgoing the interview opportunity. A failure to provide representation, in and of itself, is not a Weingarten violation. The court found that the Bellagio acted reasonably in attempting to secure union representation for Garner. When a representative could not be located, the court held that the hotel "simply took Weingarten's third path" and offered Garner the option of giving a statement without the presence of a representative. The court concluded that the NLRB's finding of a violation relied on a "perverse reading of the record."
The court rejected the retaliation claim, in that the suspension pending investigation was expressly communicated as not being disciplinary, had no disciplinary impact and resulted in no loss to Garner. The court also reversed the surveillance ruling. Because Garner was in a heavily trafficked area of the hotel when he was observed for a brief period of time and without any evidence of attendant coercive conduct, the court held that the NLRB's surveillance finding "borders on the absurd."
Bellagio v. NLRB, D.C. Cir., No. 15-1390 (April 25, 2017).
Professional Pointer: Balancing apparently reasonable employment actions against a shifting legal landscape is a continuing challenge for HR professionals. Through adequate advance training and careful guidance during such decision-making processes, employers can effectively manage their workforce while limiting potential liabilities.
Scott M. Wich is an attorney with Clifton Budd & DeMaria, LLP in New York City.
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