Circus Circus Casinos, Inc. v. National Labor Relations Board - D.C. Circuit Court of Appeals
Facts: Circus Circus operates a casino in Las Vegas and hired Michael Schramm (“Schramm”) on a temporary basis to join its engineering department. Schramm, tasked with changing door stops in the hotel’s guest rooms, was represented by the United Brotherhood of Carpenters and Joiners of America Southwest Regional Council of Carpenters Local #1780 (“the Union”).
In November or December of 2013, Schramm and several other employees attended an engineering department mandatory safety meeting. At the meeting, an engineer raised concerns over second hand exposure to marijuana smoke in the guest rooms could lead to the engineers testing positive for illegal drugs. According to some reports, department head Rafe Cordell (“Cordell”) took offense to this and suggested that maybe Circus Circus did not need the engineers anymore. (Other reports stated the meeting occurred without incident.)
Circus Circus had a policy in place that required employees to submit to an Occupational Safety Health Administration (“OSHA”) mandated medical exam for the use of a respirator needed to minimize exposure to airborne hazards in the workplace. Schramm refused to complete initial paperwork at the onsite medical clinic and demanded to speak to a doctor first. He subsequently left the clinic when told that he was required to fill out the initial paperwork before he could see a doctor. Circus Circus suspended him pending an investigation into why he refused to complete the OSHA exam. The Human Resources department at Circus Circus scheduled an investigatory interview with Schramm and gave him the Union’s phone number in the event he wanted a Union representative present. Schramm apparently tried to contact the Union a couple times but could not reach anyone.
On the day of the interview, Schramm appeared and looked around a hallway for a Union representative but apparently could not find one. Schramm entered the interview with two Human Resources representatives and allegedly stated “I called the Union three times [and] nobody showed up, I’m here without representation.” (The two Human Resources representatives deny Schramm made this statement but acknowledged the interview took place without them offering Schramm union representation.)
A few weeks later, Cordell and Human Resources again met with Schramm (who had a Union representative with him this time.) Schramm was subsequently terminated on the grounds that he violated the company’s rules against insubordination and improperly refused to take the OSHA exam. Schramm proceeded to file unfair labor practice charges, alleging that Circus Circus: 1) violated his National Labor Relations Act (“NLRA”) rights by discouraging employees from voicing shared concerns about the terms and conditions of employment (in relation to potential exposure to marijuana smoke in the workplace); 2) unlawfully ignored his request for union representation at the initial investigatory meeting, in violation of NLRB v. J. Weingarten, Inc.; and 3) unlawfully suspended and terminated him because of activity protected under the NLRA and not because of any alleged workplace misconduct. An Administrative Law Judge (“ALJ”) found that Circus Circus committed the unfair labor practices and the NLRB adopted the ALJ’s decision. Circus Circus petitioned the D.C. Circuit Court of Appeals for review of the NLRB’s decision.
Holding: (Note, this case brief only looks at the Weingarten portion of Schramm’s case.)
Under NLRB v. J. Weingarten, Inc., the U.S. Supreme Court held that Section 7 of the NLRA guarantees an employee the right “to refuse to submit without union representation to an interview which he reasonably fears may result in his discipline.” Notably, the Weingarten right “arises only in situations where the employee requests representation.” It has long been held that an employer has no duty to inform an employee of his/her rights under Weingarten. Once an employee makes a request for a union representative, an employer has three options: 1) grant the request; 2) end the interview; or 3) offer the employee the choice between having an interview without a representative or having no interview at all.
To establish a Weingarten violation, it must be shown 1) the employee made a valid request for a union representative to be preset during an investigatory interview; 2) the employee reasonably believed the interview might result in disciplinary action; and 3) the employer compelled the employee to attend the interview without union representation. However, to invoke the Weingarten right, the employee’s utterance must be “reasonably calculated” to put the employer “on notice of the employee’s desire for union representation.” Prior caselaw has established that valid requests may take the form of straightforward demands, questions about the need for assistance, or requests for delay or an alternative representative.
Based upon the facts in the record, they Court of Appeals found that Schramm only recited facts about his past communications with the Union and the circumstances of his attendance at the meeting. By only making statements of fact about his attempts to contact the Union, it was held that this was insufficient to trigger rights under Weingarten and conversely insufficient to establish an unfair labor practice. The Court went on to point that if the NLRB’s decision was upheld, the Weingarten right would be transformed into one that would automatically apply to all covered investigatory meetings.
Judgment: The D.C. Circuit Court of Appeals set aside an NLRB unfair labor practice finding on the grounds that an employee’s statement of facts was not “reasonably clear” to apprise the employer of a request for union representation under Weingarten.
The Takeaway: This was an interesting opinion, if for no other reason than the fact that it serves as a reminder that what you say (or rather how you say it) is paramount when determining whether an unfair labor practice occurred. In this situation, I think the D.C. Circuit Court of Appeals got it right by recognizing that merely stating facts (rather than making a demand, asking a question about the need for assistance, or requesting a delay for an alternative representation) is not sufficient to trigger Weingarten rights. Relying upon the U.S. Supreme Court’s decision and the fact that there was no caselaw which so broadly interpreted Weingarten (as the NLRB decision had) there was simply no latitude to so broadly interpret a statement of facts as triggering Weingarten rights. Had Schramm made a demand for a union representative to be present at the initial investigatory meeting, it appears this would have been enough to trigger those rights. However, merely making statements of fact will not be found to be “reasonably clear” to put an employer on notice of a request for union representation.
Majority Opinion Judge: Judge Rao
Date: June 12, 2020
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