In Bellagio, LLC, 362 NLRB No. 175 (Aug. 20, 2015), the National Labor Relations Board concluded that an employer violated the National Labor Relations Act (the “Act”) when it supposedly denied an employee’s request for union representation during a disciplinary interview and also suspended him for refusing to participate in the investigation without union representation.

The employer is a casino operator in Las Vegas, Nevada. The employee is a bellman whose duties included assisting guests with luggage and with hotel check-in and check-out. On May 12, 2013, a hotel guest lodged a complaint against the employee claiming that the employee acted inappropriately in attempting to coax a tip and rudely after the guest withheld the tip. When a supervisor brought the employee for an interview, the employee asked whether discipline was on the table and also requested to contact a union representative. The supervisor could not locate a union representative, instructed the employee that it was the employee’s responsibility to find a union representative, and directed the employee to complete and sign a statement relating to the guest complaint. The employee declined to do so and indicated his desire to return to work. Rather than permit the employee to return to work, the supervisor placed the employee on suspension pending an investigation into the guest complaint. The following day, the employee and his union representative met with hotel management and cooperated with the investigation. Ultimately, the employee did not lose any pay as a result of his suspension.

The Board majority, through Chairman Pearce and Member McFerran, affirmed the Administrative Law Judge’s conclusion that the employer violated the employee’s Weingarten rights. Under NLRB v. J. Weingarten, 420 U.S. 251 (1975), an employee has the right, upon request, to have a union representative present during an investigatory interview, which the employee reasonably fears may result in discipline. The Board majority concluded that 1) the employer’s supervisor informed the employee at the beginning of the meeting that discipline was a possibility; 2) the employee requested a union representative; and 3) the employer did not grant the employee’s request because the parties could not locate a union representative. According to the Board majority, without a union representative available, the employer should have discontinued the interview. Instead, the employer continued to press the employee for a statement and suspended him as a result of his refusal to provide one. Although the employee suffered no loss in pay and received no discipline other than a brief suspension, the Board majority held that the employer subjected the employee to an adverse employment action when it removed him from the workplace.

In his dissent, Member Johnson disagreed with the Board majority’s summary of the pertinent facts. Specifically, Member Johnson found that the employer did not continue with the interview after failing to locate a union representative. According to Member Johnson, the facts “establish that [the supervisor] informed [the employee] that [the employee] would be suspended pending investigation if he continued to refuse either to locate a representative for himself or to fill out a statement….they do not establish that [the employer] sought to continue the interview after [the employee’s] request [for a representative].” Member Johnson also determined that the employer did not take any adverse employment action against the employee. Member Johnson concluded his dissent by stating:

“As a policy matter, the Board would better fulfill our mission of promoting industrial peace by permitting an employer in a situation like this—where an employee has been accused of a nefarious infraction and circumstances beyond the control of the employer prevent an immediate investigatory interview—to send the employee home pending the prompt completion of the investigation….I regret that my colleagues’ failure to recognize commonsense boundaries for Weingarten obligations here have transformed them into an unworkable stricture for employer that are faced with the sudden need to investigate a workplace incident, a scenario which happens all too frequently in the modern world.”