DC Circuit Vacates NLRB Decision, Rejects Credibility Findings

June 25, 2020

Volume X, Number 177

June 24, 2020

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Appeals Court Vacates NLRB Decision, Rejects Credibility Findings

The National Labor Relations Board (NLRB) incorrectly found an employee invoked Weingarten rights and misapplied the Wright Line burden-shifting framework in finding an employee was unlawfully terminated, the federal appeals court in D.C. has held. Circus Circus Casinos, Inc. v. NLRB, No. 18-1201 (D.C. Cir. June 12, 2020). The Court also took the unusual step of overruling some witness credibility findings made by the Administrative Law Judge (ALJ) after an unfair labor practice trial.

Named after NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), “Weingarten rights” refers to an employee’s right to request union representation during an investigatory interview that the employee reasonably believes could lead to the employee’s discipline.


The employee was a journeyman carpenter working in the employer’s engineering department, assigned to upgrade doorjambs in hotel guest rooms.

The employer required employees to submit to a medical exam the Occupational Safety and Health Administration (OSHA) mandates, related to the need to wear a respirator to minimize exposure to airborne hazards. The employee refused to complete the intake paperwork at the onsite medical clinic, demanded to speak to the doctor first, and left when clinic staff told him he needed to do the paperwork before he could see the doctor.

The employer suspended the employee pending an investigation into why he refused to complete the OSHA medical exam.

Human Resources scheduled an investigatory interview with the employee and gave him the union’s telephone number for the union in case he wanted to ask a representative to attend. On the day of the interview, the employee claimed and announced, “I called the Union three times [and] nobody showed up. I’m here without representation.” The employer completed the interview without a union representative in attendance. At a second meeting, with a union steward present, the employer terminated the employee for insubordination related to the refusal to complete the paperwork and for refusing to complete the mandatory OSHA exam.

In addition, the employee alleged that, during one of the engineering department’s mandatory weekly safety meetings held several weeks before the medical exam issues, he and another engineer raised concerns about testing positive for illegal drugs based on secondhand exposure to marijuana smoke in guest rooms. Management told the employees that that level of exposure would not lead to a positive drug test result. The employees were not satisfied with this response and pressed the manager. The employee claimed the manager became angry and told the employee, “you know what, maybe we just won’t need you anymore,” and walked out of the meeting.

The employee filed unfair labor practice charges and ultimately an unfair labor practice complaint was issued. The complaint alleged three violations of the National Labor Relations Act (NLRA): (1) the manager’s statement at the safety meeting interfered with employees’ Section 7 rights to raise concerns regarding terms and conditions of employment; (2) the investigatory meeting without union representation violated the employee’s Weingarten rights; and (3) the termination was in retaliation for protected activity (claiming the employee was fired because of his comments at the safety meeting, not because of the medical exam).

After a trial, an ALJ held the employer violated the NLRA as alleged. On appeal, the NLRB adopted the ALJ’s decision. The employer petitioned the federal appeals court for review.

Court Vacated NLRB Order

The appellate court granted the employer’s petition and vacated the NLRB’s order.

On the Weingarten issue, the Court held, “[T]he Board acted in an arbitrary and capricious manner by significantly altering the test for valid Weingarten requests to cover the facts of this case.”

The Court found the employee’s statement (“I called the Union three times [and] nobody showed up. I’m here without representation.”) was not a valid, affirmative request for union representation. Instead, it was simply a statement of facts. (The NLRB had found a Weingarten request was “subsumed” in this statement.) However, the Court found “an affirmative request is an indispensable element of a Weingarten violation” because, if representation is supplied where not requested, this would “expand[] the reach of Weingarten without accounting for employee choice, a central policy of the NLRA.” Thus, the Board vacated the finding of a Weingarten violation.

The Court also found the NLRB did not correctly apply the Wright Line framework [251 NLRB 1083 (1980)], because it did not consider the employer’s rebuttal case. The NLRB had reasoned, in part, that if the employer’s “true concern” was the employee needed to complete the OSHA exam, “he would have been allowed to speak to the doctor prior to testing, or, at a minimum, sent back for testing.” The Court found the NLRB’s speculation was irrelevant to the question whether the employer terminated the employee for protected conduct. It stated the NLRB did not answer the relevant question: Whether the employer reasonably believed the employee committed the misconduct. Here, the employer “had no reason to doubt the reports of medical personnel [about the employee’s conduct at the clinic] and was therefore entitled to rely on them.”

The Court recognized an employer:

is entitled to a policy of strict enforcement of its rules related to insubordination and compliance with testing policies. The Board cannot second guess an employer’s legitimate and consistently enforced policies for safety and discipline in the workplace. To do so exceeds the Board’s expertise and ity under the Act.

The Court also found Wright Line had been misapplied because the NLRB did not assess whether the employer’s decision to terminate the employee was consistent with the employer’s policy and practice. (“Insubordination” and “refusal to submit to a physical examination” were terminable offenses under the employer’s policies.) The Court remanded this allegation to the NLRB to determine “whether the record supports an unlawful termination finding under the correct standard.”

Witness Credibility

Finally, the Court vacated the allegation the manager threatened the employee at the safety meeting. In doing so, the Court found this was “the rare case” where it was appropriate to set aside the ALJ’s credibility determinations. The Court held the ALJ’s finding that the manager made the threatening statement to the employee was “patently insupportable.” The employee’s testimony regarding the meeting was “materially contradicted [at trial] by six witnesses, union members and non-members alike, who remember only an ordinary discussion that concluded without any threats.” Noting “[l]egitimate adjudication requires evenhanded assessment of testimony offered on behalf of the employer and the employee,” the Court overruled the witness’s testimony and vacated the related unfair-labor-practice finding.

Jackson Lewis P.C. © 2020National Law Review, Volume X, Number 174


About this

Jonathan J. Spitz, Jackson Lewis Law Firm, Labor Employment Attorney, Atlanta

Jonathan J. Spitz is a Principal in the Atlanta, Georgia, office of Jackson Lewis P.C. He is Co-Leader of the firm’s Labor and Preventive Practices Group.

Mr. Spitz lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media issues and the changing regulatory landscape. He understands the practical and operational needs of corporate America, helping design pragmatic strategies to minimize risk and maximize performance. He has represented...

Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Jessica M. Marsh, Jackson Lewis, labor arbitrations lawyer, contract administration matters attorney
Of Counsel

Jessica M. Marsh is Of Counsel in the Minneapolis, MN, office of Jackson Lewis P.C. She is certified as a Labor and Employment Law Specialist through the Minnesota State Bar Association.

Ms. Marsh’s traditional labor experience includes assisting both unionized and union-free workplaces facing union organizing attempts, picketing and/or strike activity, and union election petitions. Ms. Marsh defends employers responding to unfair-labor practice charges at the NLRB Regional Offices and on exceptions to the NLRB. Ms. Marsh also represents...