When Does An Employee Get Union Representation?

  • Jul 24, 2018
  • NLRB
  • Grant S. Gibeau

In the recent case of Circus Circus Casinos, the National Labor Relations Board (NLRB) affirmed the standard for determining when an employer is placed “on notice” regarding an employee’s assertion of their Weingarten right to Union representation.  This decision offers an excellent opportunity for employers with a unionized workforce to review their obligations under Weingarten and avoid having to defend an unfair labor practice charge on the issue.

What are Weingarten Rights?

The United States Supreme Court case of NLRB v. J. Weingarten, Inc. established that union-represented employees have the right to union representation during all “investigative interviews.” An investigative interview is an interview or meeting with management where an employee’s answers could subject them to discipline, or any interview or meeting where employees are asked to defend their conduct. If an employee has a reasonable belief that discipline may result from an investigation, they have a right to request that a union representative be present.

An employer does not have any obligation to inquire or ask whether an employee wishes to utilize their Weingarten rights.  Rather, the employee has the onus of affirmatively asserting the right to Union representation. However, there are no “magic words” to such a request – the NLRB has ruled that an employee is entitled to representation if they place their employer on sufficient notice that they desire representation.

The “On-Notice” Standard

The Circus Circus Casinos decision provides further guidance regarding when an employee’s conduct is sufficient to place their employer on notice that they want union representation. An employee was called into a disciplinary meeting, during which he informed his employer that he “had called the Union three times” regarding the investigation, that “the Union had not called him back,” and that “he was at the meeting without representation.” The Employer conducted the meeting despite these comments.

The NLRB determined that the employee’s statements should have placed the employer on notice that the employee wished to have union representation present, and therefore constituted a bona fide request for Weingarten representation. Noting that what constitutes a Weingarten request has traditionally been interpreted liberally, the NLRB affirmed the administrative law judge’s decision and held that the employer violated the National Labor Relations Act by conducting the meeting without a union representative.

Bottom Line

This case reminds us to listen carefully to what the employee is saying when called in for an interview.  If the employee talks about “wanting the union there”, “needing to call a union representative” or some other similar request, the employer should either 1) grant the request and delay the interview until a representative arrives, 2) deny the request and end the interview immediately, or 3) give the employee the choice of conducting the interview without representation or ending the interview.  In the event that an employer chooses to continue an interview after an employee asks for representation, or disciplines an employee for making such a request, that employer runs the risk of violating the National Labor Relations Act.