Bellagio v. NLRB: the DC Circuit Reins in the NLRB’s Expansive Take on Weingarten Rights, and a Sign of (NLRB) Things to Come

by Hirschfeld Kraemer LLP
Contact

Hirschfeld Kraemer LLP

Last week, in the case of Bellagio LLC v. National Labor Relations Board, the Circuit Court for the District of Columbia determined that the Bellagio Hotel and Casino in Las Vegas did not interfere with a bellhop’s “Weingarten rights” under the National Labor Relations Act (“NLRA”). Standing alone, this is an important decision for employers because it reverses an Obama-era ruling by the National Labor Relations Board’s (“NLRB”) that was inconsistent with the existing body of law on the scope of Weingarten rights. More broadly, though, this decision will likely be upstaged in the long run by a decided shift by the NLRB itself to a more employer-friendly position than existed under the Obama Administration.

Since 1975, when the U.S. Supreme Court weighed in on the issue in NLRB v. J. Weingarten, Inc., union employers and employees have understood that such employees have the right under the Act (“Weingarten” rights) to have a union representative present during any investigatory interviews. However, it is not an employer’s duty to automatically provide a representative: the employee must affirmatively request this. If an employee makes such a request, the employer has three options: one, it may grant the request; two, it may end the interview; or three, it may offer the employee the choice between having an interview without a representative or having no interview at all.

In this case, the Bellagio received a complaint from a hotel guest that a bellhop Gabor Garner, had solicited a tip (which was against the Bellagio’s policy), and when such tip was refused, made a sarcastic comment to the guest. When management tried to interview Garner, he requested union representation. The Bellagio first invited Garner to contact a Union representative himself. When he refused, Bellagio management personnel attempted to locate one themselves, but were unsuccessful. When management personnel returned to the interview room where Garner was waiting, before ending the interview, they asked if he wanted to instead make a written statement. Garner refused, and so the Bellagio placed him on a paid suspension pending investigation. The next day, Garner was interviewed with his union representative present, issued a written warning, and returned to work with no loss in pay. Garner then complained to the NLRB.

The NLRB determined that the Bellagio had deprived Garner of his Weingarten right to union representation. The D.C. Court of Appeal reversed, reasoning that the Bellagio “never resisted or undermined Garner’s invocation” of his right to seek union representation; that the “Bellagio’s supervisors never threatened or intimidated Garner”; and that the management personnel “stopped asking questions after [Garner] requested a Union representative.” Instead, the Court determined that the Bellagio “simply took Weingarten’s third path and offered Garner ‘the choice between having an interview unaccompanied by [a] representative, or having no interview and forgoing any benefits that might be derived from one.” Thus, these actions could not be an unfair labor practice under the NLRA.

Takeaways: Expect the NLRB Pendulum to Swing to the Employer Side

The asserted coverage of the NLRA, including the application of Weingarten rights, generally expands and contracts with the change of presidential administrations and the constitution of the NLRB. This happened under the Clinton Administration when the NLRB ruled that Weingarten rights applied to non-union workforces, and again under the administration of George W. Bush when the NLRB reversed course and ruled that Weingarten rights only applied in union settings. (Interestingly, despite the aggressive, employee-side stance of the NLRB under the Obama Administration, there was no NLRB ruling during Obama’s presidency that swung back to the position that Weingarten rights apply to non-union employees.) Now that Donald Trump hold the Presidency, expect a swing back to employers.

The actions of President Trump so far give a good idea of his vision of the NLRB. Shortly after taking office, President Trump appointed Philip Miscimarra, the sole Republican on the NLRB’s five-member board, as its acting chair, and then removed the interim label two weeks ago. Miscimarra was the only real management-side voice on the NLRB during the Obama years, and harshly criticized several of its prominent rulings, including the 2015 Browning-Ferris Industries ruling that relaxed the requirements for joint-employer liability (and thereby exposed more employers to lawsuits. (This ruling is pending, on appeal, before the D.C. Circuit and should be decided upon at some point in 2017.) Miscimarra also opposed the NLRB’s 2012 D.R. Horton ruling that class-action waivers in employment arbitration agreements are illegal. (Interestingly, as we previously blogged, the US. Supreme Court is reviewing, in a consolidated appeal, the decisions of various circuits regarding class-action waivers, including the 9th Circuit, that rely, in part, upon the D.R. Horton ruling. See here.) In addition to Miscimarra, President Trump is currently vetting candidates to fill two open positions on the five-member board, and such candidates are almost certainly going to be oriented more toward employers.

The question, then, is not whether the NLRB changes course, but rather how drastically it changes course, and how quickly it does so. Early indications are that the changes could be substantial and swift. Stay tuned.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Hirschfeld Kraemer LLP | Attorney Advertising

Written by:

Hirschfeld Kraemer LLP
Contact
more
less

Hirschfeld Kraemer LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!