Employees Must Affirmatively Request Weingarten Rights, DC Circuit Rules

Author: Robert S. Teachout, XpertHR Legal Editor

July 2, 2020

The US Court of Appeals for the District of Columbia has ruled that an employee must affirmatively request union representation to invoke their Weingarten rights under the National Labor Relations Act (NLRA).

Weingarten rights guarantee employees the right to refuse to submit to an interview that they reasonably fear may result in discipline without union representation. The right arises only when an employee requests representation or makes statements that provide "reasonably calculated notice" that the employee is requesting representation.

In Circus Circus Casinos v NLRB, the employee, Michael Schramm, was called into an investigative meeting for refusing a medical exam needed to allow proper fitting for required safety equipment. Circus Circus has a written policy that makes submission to the medical testing process a mandatory condition of employment. When Schramm arrived for the interview, he told the employer's representatives, "I called the union three times [and] nobody showed up, I'm here without representation."

The company continued the meeting and ultimately terminated the employee. Schramm filed a claim with the National Labor Relations Board (NLRB), which ruled that the employee's statement of fact provided sufficient notice that he was invoking his Weingarten rights.

Circus Circus petitioned the DC Circuit to review the NLRB's decision, arguing that the employee's statement did not constitute a valid request and that the Board had vastly expanded employees' Weingarten rights. The Court agreed, holding that the NLRB had improperly broadened the application of Weingarten rights by allowing mere statements of fact to provide an employer the "reasonably calculated notice" necessary to trigger the right.

"The Weingarten allegation should have been dismissed because Schramm did not make an affirmative request for union representation," the Court held. It noted that longstanding NLRB precedent has been that Weingarten protections are not invoked until an employee affirmatively requests representation through, for example:

  • Straightforward demands;
  • Questions about the need for assistance (e.g., "Should I have a union representative present?"); or
  • Requests for a delay or an alternative representative.

"In this case, Schramm merely recited facts about his past communication with the union and the circumstances of his attendance at the meeting," the Court said. "Any affirmative request by Schramm was made to the union rather than to a Circus representative."