“[O]nce an employee validly requests a union representative, an employer has three paths open to it: it may grant the request, end the interview, or offer the employee the choice between having an interview without a representative or having no interview at all.”
How later courts described this case
- “[O]nce an employee validly requests a union representative, an employer has three paths open to it: it may grant the request, end the interview, or offer the employee the choice between having an interview without a representative or having no interview at all.”
Written by the judges who cited it.
The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 6, 2017 Decided April 25, 2017
No. 15-1327
BELLAGIO, LLC,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with 15-1390
On Petition for Review and Cross-Application
for Enforcement of an Order of
the National Labor Relations Board
Paul T. Trimmer argued the cause and filed the briefs for
petitioner.
Rebecca J. Johnston, Attorney, National Labor Relations
Board, argued the cause for respondent. With her on the brief
were Richard F. Griffin, Jr., General Counsel, Jennifer
Abruzzo, Deputy General Counsel, John H. Ferguson,
Associate General Counsel, Linda Dreeben, Deputy Associate
General Counsel, and Meredith L. Jason, Deputy Assistant
General Counsel. Kira D. Vol, Attorney, National Labor
Relations Board, entered an appearance.
2
Before: BROWN, Circuit Judge, and EDWARDS and
SENTELLE, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: The petition for review
in this case, filed by Bellagio, LLC (“Bellagio” or
“Company”), challenges a Decision and Order issued by the
National Labor Relations Board (“NLRB” or “the Board”).
The Board determined that Bellagio violated section 8(a)(1)
of the National Labor Relations Act (“NLRA” or “the Act”)
when it interfered with employee Gabor Garner’s right to
have a union representative present during an investigatory
meeting; retaliated against him for invoking that right by
placing him on “Suspension Pending Investigation” (“SPI”);
unlawfully surveilled Garner after placing him on SPI; and
then coercively prevented him from discussing his suspension
with other employees. The Board ordered Bellagio to cease
and desist from these activities, post a notice informing
employees of the violations, and pledge not to repeat them.
Bellagio, LLC, 362 NLRB No. 175 (2015).
Bellagio contends that the Board’s determinations should
be vacated because they are inconsistent with established
precedent and not supported by substantial evidence. It also
asserts that the Board violated the Company’s due process
rights in finding that a Company supervisor engaged in
coercive conduct to compel Garner not to speak with
coworkers about his discipline because this was not among
the charges in the complaint that had been issued against
Bellagio. We find that Bellagio’s contentions are meritorious.
We therefore grant in full the petition for review and deny the
Board’s cross-application for enforcement.
3
I. Background
At the time of the events giving rise to this dispute,
Garner was a bellman at Bellagio, a hotel in Las Vegas,
Nevada. As a bellman, Garner was represented by the Local
Joint Executive Board of Las Vegas, Culinary Workers
Union, Local 226, and Bartenders Union, Local 156
(“Union”), affiliated with UNITE HERE. Garner’s job duties
included greeting arriving guests, assisting them with their
luggage, and escorting departing guests from the hotel.
Bellagio expects its bellmen to treat customers with courtesy
and respect at all times, and forbids them from soliciting tips.
On May 12, 2013, a guest complained that Garner had
inappropriately attempted to solicit a tip and, when the
customer did not oblige, Garner allegedly responded with a
sarcastic comment. The next day, shortly before Garner’s shift
was to end, Front Services Supervisor Brian Wiedmeyer
summoned him to a meeting regarding the customer’s
complaint. Max Sanchez, another supervisor, also attended as
a witness. Garner asked Wiedmeyer whether the meeting
could result in discipline. Wiedmeyer told him that it might, at
which point Garner requested a Union representative.
Wiedmeyer requested that Garner provide a statement
describing the incident, but Garner declined to do so without a
representative present.
When Garner declined to contact a representative
himself, Wiedmeyer and Sanchez left the meeting in search of
a Union agent. However, neither Wiedmeyer, Sanchez, nor
Company representatives in the Employee Relations
department could locate a Union representative. Wiedmeyer
then returned to the meeting room and again asked Garner to
fill out a statement, but Garner refused to do so without a
4
Union representative present. Wiedmeyer then placed Garner
on SPI and told him that he had to leave the premises.
Garner exited the meeting and walked into the dispatch
area. This is a heavily-trafficked location on Bellagio
premises where bellmen store their belongings and wait for
assignments. Most of the customers’ luggage at the hotel also
passes through the dispatch area, and it is common for
employees to enter the area throughout the day. While
gathering his personal belongings, Garner started to tell
another bellman about his meeting with Wiedmeyer and the
resulting SPI. At that point, Wiedmeyer entered the room, told
Garner that he could not discuss the matter at that time, and
once again instructed him to leave the hotel. Wiedmeyer then
followed Garner to ensure that he was heading towards the
building’s exit.
Later that day, Bellagio contacted Garner to schedule a
disciplinary meeting. The next morning, Garner and a Union
steward attended a meeting with Front Services Director
Charles Berry and Employee Relations Manager Susan
Moore. Garner completed a statement, received a verbal
warning, and then returned to his job. As a result of the SPI,
Garner missed a short amount of work, for which he was fully
compensated.
Garner subsequently filed an unfair labor practice charge
with the NLRB. The Board’s General Counsel issued a
complaint against the Company, alleging that it had violated
the Act by conducting an investigatory interview after Garner
had invoked his right under NLRB v. J. Weingarten, Inc., 420
U.S. 251 (1975), to have a Union representative present. The
complaint also charged Bellagio with retaliating against
Garner for invoking his Weingarten right; unlawfully
surveilling him; and promulgating an overly broad rule
5
prohibiting employees from discussing disciplinary matters
that were under investigation. Following a hearing, an
Administrative Law Judge (“ALJ”) issued findings that
Bellagio had indeed committed the unfair labor practices as
alleged.
The Board adopted the ALJ’s findings on all but one
charge. It held that Wiedmeyer did not promulgate an
unlawful rule when he instructed Garner not to discuss his SPI
in the dispatch area. Instead, the Board found that Wiedmeyer
had “engaged in coercive conduct to compel Garner to cease
speaking to coworkers about his discipline.” Bellagio, LLC,
362 NLRB No. 175, at 1 n.3. The Board adopted the ALJ’s
Order requiring the Bellagio to cease and desist from its
unfair labor practices and post a notice informing employees
of these violations and promising not to repeat them.
The Company petitioned for review of the NLRB’s
Decision and Order, and the Board cross-applied for
enforcement. We have jurisdiction to decide this case
pursuant to 29 U.S.C. §§ 160 (e) and (f).
II. Analysis
A. Standard of Review
Our role in reviewing an NLRB decision is deferential
and limited. “We must uphold the judgment of the Board
unless, upon reviewing the record as a whole, we conclude
that the Board’s findings are not supported by substantial
evidence, or that the Board acted arbitrarily or otherwise erred
in applying established law to the facts of the case.”
Wayneview Care Ctr. v. NLRB, 664 F.3d 341, 348 (D.C. Cir.
2011) (quoting Mohave Elec. Coop., Inc. v. NLRB, 206 F.3d
1183, 1188 (D.C. Cir. 2000)). Substantial evidence requires
6
enough “relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Micro Pac. Dev. Inc. v.
NLRB, 178 F.3d 1325, 1329 (D.C. Cir. 1999) (citation
omitted). Thus, a court’s duty is not to impose its own
preferred judgment, but to reverse the Board “only when the
record is so compelling that no reasonable factfinder could
fail to find to the contrary.” Bally’s Park Place, Inc. v. NLRB,
646 F.3d 929, 935 (D.C. Cir. 2011) (citations and quotations
omitted).
B. Bellagio Did Not Violate Garner’s Weingarten Right to
Union Representation
The Board determined that Bellagio deprived Garner of
his right to union representation under Weingarten, and thus
violated section 8(a)(1) of the Act, when Wiedmeyer asked
Garner to fill out a written statement after the employee had
requested a Union representative. This conclusion finds no
support in the applicable law.
Section 8(a)(1) of the Act makes it an unfair labor
practice for an employer “to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in” section
7 of the Act. 29 U.S.C. § 158(a)(1). More than forty years
ago, the Supreme Court held that the Board’s determination
that section 7 “creates a statutory right in an employee to
refuse to submit without union representation to an interview
which he reasonably fears may result in his discipline” was a
permissible construction of the Act. Weingarten, 420 U.S. at
256, 260. The right is not absolute, however, because it “may
not interfere with legitimate employer prerogatives.” Id. at
258. Therefore, in assessing a situation to determine whether
Weingarten has been violated, the Board must take account of
the context in which a request for union representation has
been made. The situations are highly variable because, once
7
an employee validly requests a union representative, an
employer has three paths open to it: it may grant the request,
end the interview, or offer the employee the choice between
having an interview without a representative or having no
interview at all. Washoe Med. Ctr., Inc., 348 NLRB 361, 361
n.5 (2006); see Weingarten, 420 U.S. at 258–59. In other
words, the mere fact that an employee’s request for union
representation is not met does not, without more, mean that
the employer has committed an unfair labor practice.
There is no dispute here that Garner reasonably believed
that the meeting with Wiedmeyer and Sanchez might lead to
discipline, and that he made a valid request for representation.
The Board determined that the Company violated the Act
because, after Garner invoked his Weingarten right,
“Wiedmeyer continued to press Garner to complete a
statement.” Bellagio, LLC, 362 NLRB No. 175, at 2. We
disagree because the Board’s finding rests on a perverse
reading of the record. What the record shows is that the
actions of Bellagio’s supervisors were fair, reasonable, and
entirely consistent with Weingarten.
After Garner asked for a Union representative, Bellagio’s
supervisors worked diligently to comply with this request.
Wiedmeyer first invited Garner to contact a Union agent
himself, but the employee declined to do so. Wiedmeyer and
Sanchez then left the room and attempted to locate a Union
representative. The supervisors sought help from the
Employee Relations department, but to no avail. Wiedmeyer
then returned to the meeting room in which Garner was
waiting. Before ending the interview, Wiedmeyer first gave
Garner the option to fill out a written statement. Garner
refused to do so. Wiedmeyer then placed Garner on SPI. In
other words, Garner was suspended with pay, and instructed
to leave the work place, pending further investigation by the
8
Company. That further investigation occurred the next day
and it included an interview with Garner and his Union
representative.
It is clear that the Company never resisted or undermined
Garner’s invocation of his right to seek union representation.
There is no suggestion that Bellagio’s supervisors threatened
or intimidated Garner. Indeed, Garner testified that
Wiedmeyer stopped asking questions after he requested a
Union representative. Wiedmeyer simply took Weingarten’s
third path and offered Garner “the choice between having an
interview unaccompanied by [a] representative, or having no
interview and forgoing any benefits that might be derived
from one.” 420 U.S. at 258. Such lawful behavior cannot
sustain an unfair labor practice finding.
Because Bellagio’s supervisors acted reasonably and in
compliance with Weingarten, we reverse the Board on this
count.
C. Bellagio Did Not Unlawfully Retaliate Against Garner
We also reverse the Board’s determination that Bellagio
retaliated against Garner in violation of section 8(a)(1) when
it placed him on SPI after he invoked his Weingarten right.
It is well settled that an employer violates the Act when it
retaliates against an employee for engaging in protected
activity. See Tasty Baking Co. v. NLRB, 254 F.3d 114, 125
(D.C. Cir. 2001). The Board analyzes the question of
unlawful retaliation by applying the test enunciated in Wright
Line, 251 NLRB 1083 (1980). See NLRB v. Transp. Mgmt.
Corp., 462 U.S. 393, 401–04 (1983) (approving the Wright
Line test). “Under that test, the General Counsel must first
‘make a prima facie showing sufficient to support the
9
inference that protected . . . conduct was a motivating factor
in [an] . . . adverse action.’” Tasty Baking Co., 254 F.3d at
125 (quoting TIC-The Indus. Co. Se. v. NLRB, 126 F.3d 334,
337 (D.C. Cir. 1997)). A finding of unlawful retaliation thus
requires a predicate determination that an employer took an
adverse action. Adverse acts are those that reduce a worker’s
prospects for employment or continued employment, or
worsen some legally cognizable term or condition of
employment. See Ne. Iowa Tel. Co., 346 NLRB 465, 476
(2006). Garner was not the subject of any “adverse action.”
Therefore, the Board erred in concluding that Bellagio
retaliated against Garner in violation of section 8(a)(1).
The SPI form given to Garner stated, in relevant part:
You are being placed on Suspension Pending
Investigation effective 5/13/13. This is not a
disciplinary action; it is a process that Bellagio
utilizes to remove you from the work place in order
to investigate a serious situation or policy infraction
in which you may have been involved.
...
Upon the completion of the investigation process,
one of the following things will occur:
1. You will be returned to work without
disciplinary action and compensated for the
scheduled shifts missed resulting from the
suspension pending investigation . . . ; or
2. You will be returned to work with
disciplinary action if warranted based on
the outcome of the investigation and
10
possibly no compensation; or
3. You will be separated from the company if
warranted based on the outcome of the
investigation.
Deferred Joint Appendix (“JA”) 306 (emphasis added and
omitted). Although, as the form indicates, the action is called
“Suspension Pending Investigation,” this does not indicate
that Bellagio actually took disciplinary action against Garner
when it issued the SPI. Id. Rather, the SPI merely confirmed
that the matter at issue was pending final resolution. And
there is nothing to indicate that the SPI had a negative impact
on Garner’s employment situation or job prospects. See Ne.
Iowa Tel. Co., 346 NLRB at 476.
The form clearly states that SPIs are not disciplinary.
Susan Moore, Bellagio’s Employee Relations Manager,
testified that SPIs are not a part of any system of progressive
discipline. And she further explained that the Company does
not keep track of SPIs in its employee files. Although the SPI
form indicates that an employee might face discipline once a
pending investigation is concluded, the issuance of an SPI
does nothing more than confirm that a matter is under
investigation. Therefore, the issuance of an SPI, without
more, does not have any adverse impact on the employee who
receives the form.
The fact that Garner was required to leave the hotel did
not render the SPI an adverse action. It is reasonable for an
employer to remove an employee from the workplace while
that employee is being investigated for alleged misconduct. If,
for example, an employee was accused of attacking a
customer, and claimed self-defense, the employer would
11
clearly be entitled to remove that employee pending an
investigation. The same principle applies in this case.
The Board found that Bellagio’s actions had a “chilling
effect on the exercise of [Garner’s] Weingarten right.”
Bellagio, LLC, 362 NLRB No. 175, at 3. The record does not
support this conclusion. In fact, the record indicates that
Garner was anything but “chilled,” either during the interview
or after being placed on SPI. He did not hesitate to request
Union representation; he insisted that the Company
supervisors find a Union agent because he declined to do so;
he did not waffle in his refusal to talk without Union
representation; and he did not hesitate in saying that he would
not give a statement. Even when Wiedmeyer placed him on
SPI, Garner did not relent, and before leaving the premises he
registered a complaint with Bellagio’s Employee Relations
department. Garner also understood that he would have Union
representation when he met with the supervisors the following
day. And, he was fully aware before being placed on SPI that
a customer had complained about his behavior and that he
was being investigated for the alleged misconduct.
There is nothing in the record to suggest that Garner was
surprised or otherwise intimidated during his interactions with
the supervisors. Indeed, he had good reason to understand that
no adverse action was being taken against him when he was
asked to leave the premises, and that none would be taken
against him before an investigation was completed. He also
knew that the delay in the investigation was a result of his
lawful insistence on Union representation. And Bellagio
worked quickly to resolve the issue, holding an appropriate
disciplinary meeting the morning after placing Garner on SPI.
Afterwards, Garner went back to his job as normal, albeit with
a verbal warning because of his actions, and the Company
fully compensated him for the short amount of work that he
12
missed. This is not the story of an employee who suffered
“chilling effects” when Bellagio exercised its “legitimate
employer prerogatives.”
In defense of its position, the Board points to decisions
which it asserts stand for the proposition that actions that are
not “disciplinary” may nevertheless be “adverse.” See Br. for
NLRB at 23–24. But the circumstances here bear little
resemblance to the cases upon which the Board relies. Most
of the decisions involve employees who suffered material
changes in the terms and conditions of their employment.
E.g., Tasty Baking Co., 254 F.3d at 129–30 (employee
transferred to the night shift); Southwire Co. v. NLRB, 820
F.2d 453, 464 (D.C. Cir. 1987) (employees confined to their
work stations and forbidden from speaking to other
employees). In this case, Garner’s job status was not
adversely affected by the issuance of an SPI. We can find no
case law that supports the Board’s position in this case. In any
event, the record in this case makes it clear that the Board
erred in finding that Bellagio retaliated against Garner.
D. Bellagio Did Not Engage in Unlawful Surveillance
The Board additionally adopted the ALJ’s determination
that Wiedmeyer engaged in unlawful surveillance when he
“aggressively” observed Garner in the dispatch area and then
watched him exit the building. This finding borders on
absurd, and it is certainly not supported by substantial
evidence.
As we explained in Parsippany Hotel Management Co. v.
NLRB,
Section 8(a)(1) of the NLRA makes it “an unfair
labor practice for an employer to interfere with,
13
restrain, or coerce employees in the exercise of
the[ir] right[ ]” to self-organize. The courts have held
that an employer’s conduct violates Section 8(a)(1) if
it creates the impression among employees that they
are subject to surveillance. This prohibition against
surveillance does not prevent employers from
observ[ing] public union activity, particularly where
such activity occurs on company premises so long as
the employer does not engage in conduct that is so
out of the ordinary that it creates the impression of
surveillance.
99 F.3d 413, 420 (D.C. Cir. 1996) (citations and quotation
marks omitted).
In determining whether an employer’s observation of
employees crosses the line into unlawful surveillance, the
Board must look to “the duration of the observation, the
employer’s distance from its employees while observing
them, and whether the employer engaged in other coercive
behavior during its observation.” Aladdin Gaming, LLC, 345
NLRB 585, 586 (2005), enf’d sub nom. Local Joint Exec. Bd.
of Las Vegas v. NLRB, 515 F.3d 942 (9th Cir. 2008).
There are simply no facts supporting the Board’s holding
that Wiedmeyer unlawfully surveilled Garner. He observed
Garner in the dispatch room, a heavily-trafficked area located
on Company property. Wiedmeyer’s presence in the dispatch
area was not “out of the ordinary,” Parsippany Hotel, 99 F.3d
at 420 (quoting Gold Coast Rest. Corp. v. NLRB, 995 F.2d
257, 266 (D.C. Cir. 1993)), because as Front Services
Supervisor his job duties sometimes required him to be there.
His observation of Garner was also very brief – they
exchanged a few words, and then Wiedmeyer observed him to
ensure that he was heading towards the building’s exit.
14
Wiedmeyer’s behavior was qualitatively different from
cases in which the Board has found unlawful surveillance. In
Parsippany Hotel, for example, we upheld the Board’s
finding of unlawful surveillance where, in the run-up to a
representation election, the employer increased the size of its
security force, identified union organizers to the guards, and
there was extensive testimony by employees that they were
constantly observed for extended periods of time. Id. at 419–
20. In Sands Hotel & Casino, the employer assigned guards to
watch employees, including placing one guard in an upstairs
hotel room with binoculars. 306 NLRB 172, 189 (1992), enf’d
sub nom. mem. S.J.P.R., Inc. v. NLRB, 993 F.2d 913 (D.C.
Cir. 1993). And in Eddyleon Chocolate Co., the company
president questioned multiple employees about rumors of
their support for the union, watched employees from his car
while speaking into his phone, and later called the police on a
leafletting union representative. 301 NLRB 887, 887–88
(1991). All Wiedmeyer did in this case was briefly observe
Garner in a common area where Wiedmeyer had every right
to be.
Wiedmeyer’s actions are analogous to situations in which
the Board has found that employers did not engage in
unlawful surveillance. See Aladdin Gaming, LLC, 345 NLRB
at 585–86 (supervisor observed employees for two minutes in
an open area, and then spoke against the union for eight
minutes); Metal Indus., Inc., 251 NLRB 1523, 1523 (1980)
(observation of employees at place and time where
management was often present was lawful). As in these cases,
Wiedmeyer’s observation of Garner was routine, and there is
nothing to indicate that it was “aggressive,” “coercive,” or
“out of the ordinary.” We therefore reverse the Board’s
finding on this point.
15
E. The Finding of Unlawful Coercion Cannot Stand
Finally, we reverse the Board’s holding that Wiedmeyer
engaged in unlawful coercion by telling Garner not to discuss
his SPI. Bellagio was not charged with any such unfair labor
practice, and in any event the Board’s finding is not supported
by substantial evidence.
A complaint filed by the General Counsel must include
“[a] clear and concise description of the acts which are
claimed to constitute unfair labor practices.” 29 C.F.R. §
102.15(b). The Board may not find and remedy a violation of
the Act not specified in the complaint unless “the issue is
closely connected to the subject matter of the complaint and
has been fully litigated.” Casino Ready Mix, Inc. v. NLRB,
321 F.3d 1190, 1200 (D.C. Cir. 2003) (quoting Pergament
United Sales, 296 NLRB 333, 334 (1989), enf’d 920 F.2d 130
(2d Cir. 1990)). The Board has held that to do otherwise
“would violate fundamental principles of procedural due
process, which require meaningful notice of a charge and a
full and fair opportunity to litigate it.” Lamar Cent. Outdoor,
343 NLRB 261, 265 (2004).
The General Counsel charged Bellagio with
promulgating an overly broad oral rule prohibiting employees
from discussing their discipline. This continued to be the
General Counsel’s theory throughout the hearing before the
ALJ. During cross-examination, Bellagio elicited from Garner
testimony that, following the events in question, he had
frequently discussed discipline while at work, and did not feel
that it was forbidden activity. This testimony effectively
undercut the General Counsel’s charge, and no other evidence
was offered to support any finding that Bellagio had adopted a
broad oral rule prohibiting employees from discussing their
16
discipline. Nonetheless, the ALJ recommended that the
charge against the Company be sustained.
In its consideration of the case, the Board modified the
charge against Bellagio. The Board held:
Although we agree that Wiedmeyer’s instruction [to
Garner] violates Sec. 8(a)(1), we do not find, as did
the [ALJ], that this instruction constituted the
promulgation of an oral rule. Rather, we find that
Wiedmeyer[] engaged in coercive conduct to compel
Garner to cease speaking to coworkers about his
discipline. See Food Services of America, 360 NLRB
No. 123 slip op. at 5 fn. 11 (2014). We will modify
the judge’s order to reflect this rationale.
Bellagio, LLC, 362 NLRB No. 175, at 1 n.3. It is clear that
Bellagio never had an opportunity to defend itself against this
charge because it was not in the complaint issued by the
Board’s General Counsel and it was not an issue in the case
that was tried before the ALJ. Although the Company
thoroughly cross-examined Garner, it did so without the
knowledge that it might be found liable for the charge later
credited by the Board. Therefore, the Board’s finding must be
set aside.
Even if the General Counsel had properly included this
allegation in the complaint against Bellagio, we would still
reverse the Board’s finding because it is not supported by
substantial evidence. When Wiedmeyer approached Garner in
the dispatch area and instructed him to stop his discussion, the
supervisor did not engage in coercive conduct to compel
Garner to cease speaking to coworkers about his discipline.
Wiedmeyer was simply enforcing the valid SPI that he had
issued to Garner. As noted above, given the circumstances in
17
this case, it was perfectly reasonable for the Company to
instruct Garner to leave the workplace pending investigation
of his alleged wrongdoing.
III. Conclusion
For the reasons stated above, we grant Bellagio’s petition
for review and deny the Board’s cross-application for
enforcement.