Sometimes it seems like the judges and NLRB Members that Donald Trump has appointed are playing a game of Jenga when it comes to workers’ rights.  They keep pulling out one small block at a time, and each move doesn’t seem that significant, but those of us watching closely are holding our breath waiting to see when the entire edifice will collapse.  A recent decision by Judge Neomi Rao of the D.C. Circuit in the case Circus Circus Casinos, Inc. v. NLRB, is an example of this.  The decision has garnered little, if any, media attention, and standing on its own, it might be hard to generate much outrage about it.  But, when you add this to dozens of other similar decisions, with more sure to follow, it’s past time to sound the alarm.

The Circus Circus case involves the scope of Weingarten rights – the right a worker has to union representation in an investigatory meeting with management.  Weingarten rights are quite modest – if an employer wants to interview a worker as part of an investigation that might lead to disciplining the worker, the worker has a right to request the participation of a union representative.  If the employer does not want a union representative to be present, the employer can offer the employee a choice of agreeing to the interview without a union representative, or having no interview and foregoing any benefit that the employee might obtain by having an opportunity to tell her side of the story.  The issue in Circus Circus was whether a worker, Michael Schramm, had invoked his Weingarten rights.  Schramm had been ordered to appear at an investigatory meeting.  Before the meeting, Schramm called the Union’s office more than once, leaving the date and time of the meeting.  When Schramm arrived for the meeting, he was hoping to see a Union representative, but none was present.  Schramm began the meeting by saying “I called the Union three times, nobody showed up.  I’m here without representation.”  The Administrative Law Judge found that this was sufficient to invoke his Weingarten rights.  As the ALJ explained, “Subsumed in the statement is a reasonably understood request to have someone present at the meeting.”  This ruling followed from earlier precedents, in particular one holding that a worker had invoked his Weingarten rights simply by asking, “Do I need to get somebody in here?” The Board upheld the ALJ’s ruling in a divided 2-1 decision, with two Obama appointees ruling in favor of the worker, and with Trump’s appointee, Chairman Ring, dissenting.

At the D.C. Circuit, the panel consisted of Judge Srinivasan, an Obama appointee; Judge Randolph, a George H.W. Bush appointee; and Judge Rao.  Again, the decision was 2-1, this time with both Republican appointees voting to set aside the Board’s ruling.  Judge Rao wrote that Schramm had failed to properly invoke his Weingarten rights because he did not make an “affirmative request” for union representation.  Instead, according to Judge Rao, Schramm merely “recited facts about his past communication with the Union.”  But, as Judge Srinivasan pointed out in dissent, “why would Schramm relate to Circus’s representatives that he had unsuccessfully tried to secure union representation if not because he still desired that assistance?”

Judge Rao tried to justify her decision by insisting that the requirement of an affirmative request protects workers’ rights, specifically the “choice not to invoke the right when he believes doing so would be against his interests.”  Again, as Judge Srinivasan pointed out, interpreting Schramm’s statement as an invocation of his Weingarten rights would not have prevented Schramm from going forward with the interview without a Union representative.  Had the employer simply asked Schramm whether he wanted to continue the interview without a Union representative present, there would have been no violation, and Schramm would have had the opportunity to decide which way his interests would best be served.

The Board once wisely observed that “rank-and-file employees do not generally carry lawbooks to work.” Prior Board cases illustrate that workers are often uncertain about how to invoke their Weingarten rights or the scope of those rights.  That’s why the Board has never required any “magic” words to trigger Weingarten rights.  Moreover, as the Supreme Court explained, Weingarten itself is based on the understanding that “a single employee confronted by an employer investigating whether certain conduct deserves discipline may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors.”  But now, thanks to Judge Rao, it’s that much harder for a worker to get the benefit of these valuable rights.