The U.S. Supreme Court’s landmark 1975 decision in NLRB v. J. Weingarten, Inc., held that a union-represented employee has the right under the National Labor Relations Act (NLRA) to have a union representative present whenever the employee is being questioned by the employer under circumstances the employee reasonably believes will lead to disciplinary action.

In the ensuing years since Weingarten was handed down, the National Labor Relations Board (NLRB), the independent quasi-judicial federal agency that enforces the NLRA, has expanded the scope of these so-called “Weingarten” rights to circumstances beyond those ostensibly set out by the High Court, albeit not always successfully, as illustrated by a recent decision issued by the U.S. Court of Appeals for the District of Columbia Circuit.

The ruling by the influential federal appeals court in Circus Circus Casinos, Inc. v. NLRB, No. 18-1201 (D.C. Cir. June 12, 2020), reversed a determination by the Board that an employee’s statement before a disciplinary meeting that he was there “without union representation” was sufficient to trigger his rights under Weingarten. In so ruling, the D.C. Circuit clarified that in order to be protected under Weingarten, an employee must “affirmatively request” representation and “mere statements of fact” describing requests made to the union, as opposed to the employer, are insufficient.

Members of the Center for Workplace Compliance (CWC) can read more here.