Weingarten Rights Only Apply When Requested - What Constitutes A Legally Sufficient Request?

The recent split decision of the National Labor Relations Board (NLRB) in Circus Circus Casinos, Inc., 366 NLRB No. 110 (June 15, 2018), is a reminder that the validity of an employee's request for Weingarten assistance at an investigatory interview or disciplinary hearing often turns on the nature of the request and the factual circumstances surrounding it.

Under Board and Supreme Court precedent in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), an employer is required to accept an employee's request for the presence of a union representative or other third party at a meeting which the employee reasonably believes may result in discipline. However, it is the employee's responsibility to inform the employer of the request; the employer is not required to divine the desire for representation unless reasonably so informed by the employee. See Weingarten, 420 U.S. at 257 (the right to union representation at a disciplinary interview arises "only in situations where