Supervisors seeking written statement acted reasonably after employee invoked Weingarten right

By Joy Waltemath

By Ronald Miller, J.D.

The D.C. Circuit found no support in the applicable law for an NLRB determination that an employer acted unlawfully when a supervisor asked an employee to fill out a written statement after he had requested a union representative. The appeals court observed that in assessing a situation to determine whether an employee’s Weingarten right has been violated, the Board must take into account the context in which a request for union representation has been made. Because the supervisor stopped asking questions after the employee requested a union rep, the Board’s decision was reversed. The court also reversed the Board’s finding that the employer retaliated against the employee when it suspended him after he invoked his Weingarten right (Bellagio, LLC v. NLRB, April 25, 2017, Edwards, H.).

The employee was a hotel bellman in Las Vegas. His duties included greeting arriving guests, assisting them with their luggage, and escorting departing guests from the hotel. Bellmen are to treat customers with courtesy and respect at all times, and are forbidden from soliciting tips.

Request for representation. On May 12, 2013, a guest complained that the employee had inappropriately attempted to solicit a tip and, when the customer did not oblige, he allegedly responded with a sarcastic comment. The next day, the employee was summoned to meet with a supervisor regarding the customer’s complaint. Two supervisors were present. The employee asked whether the meeting could result in discipline. When a supervisor told him that it might, he requested a union representative. He declined to provide a statement describing the incident without the representative present. When he persisted in refusing to provide a statement, he was placed on suspension and told to leave the premises.

The employee went to the dispatch area to collect his belongings. While there, he started to tell another bellman about the meeting and the resulting suspension. At that point, his supervisor entered the room, told the employee that he could not discuss the matter at that time, and once again instructed him to leave the hotel. The supervisor then followed the employee to ensure that he was heading toward the building’s exit.

The next morning, the employee and a union steward met with management officials. He completed a statement, received a verbal warning, and then returned to his job. As a result of the suspension, the employee missed a short amount of work, but he was fully compensated.

Investigatory meeting. The employee subsequently filed an unfair labor practice charge with the NLRB. Ultimately, the Board found that the employer acted unlawfully when it interfered with the employee’s right to have a union rep present during an investigatory meeting; retaliated against him for invoking that right by placing him on suspension; unlawfully engaged in surveillance of the employee after placing him on suspension; and then coercively prevented him from discussing his suspension with other employees.

The employer petitioned for review, arguing that the Board’s determinations should be vacated because they were inconsistent with established precedent and not supported by substantial evidence. The employer also asserted that the Board violated the company’s due process rights in finding that the supervisor engaged in coercive conduct to compel the employee not to speak with coworkers about his discipline because this was not among the charges in the complaint that had been issued against it.

Weingarten right. The D.C. Circuit first examined whether the employer deprived the employee of his right to union representation under Weingarten when a supervisor asked him to fill out a written statement after the employee had requested a union rep. Here, the appeals court found no support for the Board’s decision in applicable law. Rather, the court observed that the mere fact that an employee’s request for union representation is not met does not, without more, mean that the employer has committed an unfair labor practice.

There was no dispute that the employee reasonably believed the meeting might lead to discipline, and he made a valid request for representation. The Board concluded that the employer violated the Act because, after the employee invoked his Weingarten right, the supervisor continued to press him to complete a statement. The appeals court disagreed. It found that the record showed that the actions of the supervisors were fair, reasonable, and entirely consistent with Weingarten.

After the employee asked for a union rep, the supervisors worked diligently to comply with his request. Before ending the interview, they gave the employee the option to fill out a written statement. He refused to do so. The employee was then placed on suspension with pay, and instructed to leave the work place pending further investigation. The court found it clear that the employer never resisted or undermined the employee’s invocation of his right to seek union representation. There was no suggestion that the supervisors threatened or intimidated him, and they stopped asking questions after he requested a union representative. Because the supervisors acted reasonably and in compliance with Weingarten, the Board was reversed.

Retaliation. The D.C. Circuit also reversed the Board’s determination that the employer retaliated against the employee when it suspended him after he invoked his Weingarten right. A finding of unlawful retaliation requires a predicate determination that an employer took an adverse action. Adverse acts are those that reduce a worker’s prospects for employment or continued employment, or worsen some legally cognizable term or condition of employment. Because the employee was not subject to any “adverse action,” the Board erred in concluding that the employer unlawfully retaliated against him.

Although the action taken against the employee was called a suspension pending investigation (SPI), there was no disciplinary action actually taken against him. Rather, the form merely confirmed that the matter at issue was pending final resolution. Further, there was nothing to indicate that the SPI had a negative impact on the employee’s employment situation or job prospects. The fact that the employee was required to leave the hotel did not render the SPI an adverse action. It is reasonable for an employer to remove an employee from the workplace while he or she is being investigated for alleged misconduct. Further, there was nothing in the record to suggest that the employee was surprised or otherwise intimidated during his interactions with the supervisors. Accordingly, the employer was granted its petition for review.

Source:: Supervisors seeking written statement acted reasonably after employee invoked Weingarten right