Weingarten Rights Not Triggered By Reciting Facts About Attempts to Communicate with Union


In a case that exemplifies the importance of word selection, the U.S. Court of Appeals for the D.C. Circuit found that an employee did not invoke his right to union representation at a disciplinary meeting by reciting facts about his past communication with the union, absent a clear assertion of his desire for such representation.

“Weingarten rights” arise out of NLRB v. J. Weingarten, Inc., in which the U.S. Supreme Court upheld a National Labor Relations Board decision that an employee was entitled to union representation in an investigatory interview that could lead to discipline. The Board has developed a reasonably calculated notice standard, under which the employee must affirmatively request representation in order to trigger such rights.

In Circus Circus Casinos, Inc. v. NLRB, the employee was summoned for an investigatory interview into allegations of possible misconduct. According to the employee when he arrived, he did not see a union representative. He then told the company managers, “I called the Union three times [and] nobody showed up, I’m here without representation.” He was not offered representation, and the company proceeded with the interview. He was subsequently terminated for the alleged misconduct, following which he filed unfair labor practice charges with the Board. The Board found a violation of his Weingarten rights.

The D.C. Circuit determined that the Board’s interpretation of “request” was too broad. According to the D.C. Circuit, under the reasonably calculated notice standard, such requests may take the form of straightforward demands, (“I need a union steward”); questions about the need for assistance (“should I have a union representative present?”); or requests for delay or an alternative representative. Mere statements of fact, such as in this case, do not constitute an affirmative request for representation.