Seyfarth Synopsis: A three-member panel of the U.S. Court of Appeals for the D.C. Circuit put the National Labor Relations Board “on tilt” when it overturned a decision finding that Bellagio, LLC violated Section 8(a)(1) of the NLRA when it interfered with an employee’s Weingarten right to have a union representative present during an investigatory meeting; retaliated against him for invoking that right; unlawfully surveilled him; and coercively prevented him from discussing his suspension with other employees.

In Bellagio, LLC v. NLRB¸ No. 15-1327 (D.C. Cir. April 25, 2017), the U.S. Court of Appeals for the D.C. Circuit denied the NLRB’s cross-application for enforcement of its decision, where the NLRB found that Bellagio, LLC violated Section 8(a)(1) of the NLRA by interfering with an employee’s Weingarten right to have a union representative present during an investigatory meeting; retaliating against him for invoking that right; unlawfully surveilling him; and then coercively preventing him from discussing his suspension with other employees. The Court ruled against the NLRB on each of the Board’s findings.

Background

A guest complained that an employee inappropriately solicited a tip and directed a sarcastic comment towards him when he did not provide the employee with a tip. When the employer tried to interview the employee, the employee requested union representation. The employer then asked if the employee would provide a written statement, which the employee refused without representation. The employee declined to contact a union representative himself so the employer tried to find one for him. When they could not, the employee was placed on paid suspension pending investigation. While gathering his belongings before leaving the building, the employee started to tell a co-worker about what happened, at which point an employer representative entered the area and told him that he could not discuss the matter at that time and directed him to leave.

The Board found that the employer had violated the Act when it asked the employee to provide a statement after he requested union representation, suspended him in retaliation for asking for a representative and “engaged in coercive conduct to compel [employee] to cease speaking to coworkers about his discipline.”

On appeal, the D.C. Circuit Court dealt Bellagio a full house and overturned the Board’s decision. As to the Weingarten violation, the Court held 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.” Once an employee validly requests a union representative, an employer has three paths open to it: grant the request, end the interview, or offer the employee the choice between having an interview without a representative or having no interview at all. Here, the employer “worked diligently” to find a representative, however, when it could not, it placed the employee on paid suspension and conducted the interview the next day (with union representation). The employer simply allowed the employee to play his hand and either have the interview unaccompanied by a representative, or have no interview and forego any benefits that might be derived from one, as is permitted under Weingarten.

The Court then doubled down on its decision and rejected the Board’s retaliation finding as the employee’s job status was not adversely affected by the paid suspension and held that there is nothing in the record to suggest that the employee was surprised or otherwise intimidated during his interactions with the supervisors.

Bellagio’s jackpot was complete when the Court rejected the Board’s unlawful surveillance determination, finding that it “borders on absurd”; as well as the Board’s unlawful coercion decision, finding that, “it was perfectly reasonable for the Company to instruct [employee] to leave the workplace pending investigation of his alleged wrongdoing.”

Employer Takeaway

The decision highlights that employers are not without recourse to continue with an investigation simply because an employee has requested to have a union representative present and the employer for whatever reason is unable to provide a representative. The Court’s decision is a reminder that “the Board must take account of the context in which a request for union representation has been made as “the [Weingarten] right is not absolute, however, because it may not interfere with legitimate employer prerogatives.” Importantly, 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.” Employers must, however, tread carefully and not check in the dark as these situations are highly variable and a bad beat remains a possibility.