Hunton Employment & Labor Perspectives

On June 12, 2020, the D.C. Circuit vacated a component of an NLRB decision that expanded employee rights under NLRB v. J. Weingarten. The D.C. Circuit rejected the NLRB’s determination that a mere statement of fact constituted an employee’s requests for union representation.

In a dispute between Circus Circus Casinos, Inc. (the “Employer”) and an employee, the Employer, pursuant to OSHA regulations and internal policies, required the employee to submit to a medical examination prior to participating in a fitting process for necessary equipment, to ensure the equipment would not jeopardize the employee’s safety. The employee refused to take the medical examination and returned to work. The Employer suspended the employee, pending an investigation into the employee’s refusal to take the mandatory medical examination. At the investigatory interview, the employee stated, “I called the union three times [and] nobody showed up, I’m here without representation.” The Employer proceeded with the interview, which culminated in the employee’s termination.

The employee filed an unfair labor practice charge against the Employer, claiming that the Employer violated his Weingarten rights by denying his request for union representation at the investigatory interview. The ALJ found in favor of the employee and the Board affirmed, stating that, “[s]ubsumed in the [employee’s] statement is a reasonably understood request to have someone present at the meeting.”

The Employer petitioned the D.C. Circuit to review the NLRB’s decision, arguing that the employee’s statement was not a valid request and was a serious expansion of employee Weingarten rights. The D.C. Circuit vacated the Weingarten component of the NLRB’s decision. The D.C. Circuit noted that an employee’s Weingarten rights do not arise unless the employee’s utterance is reasonably calculated to put an employer on notice that the employee desires union representation.

The NLRB’s holding broadened Weingarten rights by establishing that mere statements of fact meet Weingarten’s “reasonably calculated notice” standard. The D.C. Circuit rejected this expansion, holding that mere statements of fact do not put employers on notice of an invocation of Weingarten rights. The D.C. Circuit further noted that such an expansion robs employees of the right not to invoke Weingarten, as cautious employers will automatically assume the right applies to all investigatory meetings.

The D.C. Circuit re-iterated the established reasonably calculated notice standard, that valid requests come in the form of demands, questions, requests for a specific union representative, and certain requests for delay. Here, the employee’s statement of fact, that “I called the union three times [and] nobody showed up, I’m here without representation,” was insufficient to put the Employer on notice that the employee had invoked his Weingarten rights.

The D.C. Circuit’s decision protects employee rights to both invoke, and not invoke, Weingarten. Further, the decision preserves the reasonably calculated notice standard, ensuring that Weingarten rights are only triggered by request.