A few years ago, there was grave concern that the “Weingarten Rights”, 420 U.S. 251 (1975) were going to be extended from just Unionized Employers to Non-Union Employers with the Non-Union individual who may be subject to discipline getting the right to ask a coworker to be present during any Disciplinary Interview. This did not occur, but a recent Decision by the National Labor Relations Board in Circus Circus Casinos, Inc. 336 NLRB No. 110 (2018) has changed the rules going forward.

Thirty (30) plus years ago in a Supreme Court Decision, the Court recognized that an Employee in a Union-Represented Workforce was entitled, upon the request of the involved Employee, to the assistance of an available Union Representative during any interview that the Employee reasonably believed could result in discipline. That standard has been maintained since the Weingarten Decision in 1975 [see, for example, Coca-Cola Bottling Company of Los Angeles, 227 NLRB 1276 (1977); Roadway Express, Inc., 246 NLRB 1127 (1979); Lennox Industries 244 NLRB 607 (1979); Kohl’s Food Company 249 NLRB 75 (1980); Pacific Gas and Electric, 253 NLRB 1143 (1981); Williams Pipeline Company 315 NLRB 1 (1994)].

Under Circus Circus Casino’s, Inc., an Employee who initially complained about breathing second-hand marijuana smoke at a hotel in Las Vegas, Nevada during a safety meeting, and, although required of all Engineering Department Employees, had apparently not been fitted for a respirator and was suspended pending an investigation. When contacted by the Company Human Resource Representative to appear for his interview, he was advised that if he wanted Union Representation, he should bring the Job Steward to the interview. On the day of his interview, the involved Employee walked by the Union Steward’s work station area, but never contacted him. When he came into his interview, he indicated that he was “without Union Representation” and made no request whatsoever that the interview be delayed pending his procuring Union Representation or that he be permitted to ask the Job Steward to attend the interview to represent his interests. The interview continued without Union Representation and eventually the Employee was discharged. The Majority Panel of the NLRB alleged that the Employee’s ambiguous announcement that he was “without Union Representation” was a demand for Union Representation that triggered the Employee’s Weingarten Rights and, therefore, since the interview went forward without the Employees’ protected Union Representation, the termination decision was a clear Unfair Labor Practice.

Going forward, Employers who are conducting interviews of Employees in Union Represented Facilities who are suspected of misconduct are best served to error on the side of caution and to extend the “Union Representation” whenever the Employee mentions his Union, his Job Steward, that he is covered by a Collective Bargaining Agreement, etc. It seems now that the burden to establish that the Employee has appeared without a Representation as his/her choice is on the Employer and not on the Employee. This concept clearly overturns nearly forty (40) years of precedent that clearly established that the burden was on the Employee to affirmatively request Union Representation and that the Employee was not entitled to specific representation by a specific Union Representative (Coca-Cola Bottling – “nothing in Weingarten indicates that an Employer must postpone interviews of its Employees because a particular Union Representative is unavailable when another Representative is available whose presence could have been requested by the Employee”).

Employers take note that if you are inattentive or inappropriate with regard to “following the new concept of Weingarten Rights”, you may pay a price of reinstatement and back pay!

Questions? Contact attorney Walter Liszka in our Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com.