Federal Court Overturns NLRB's Decision Against Bellagio On Weingarten Rights

By Kamer Zucker Abbott

May 8, 2017

The Bellagio is to be congratulated on a recent decision in its favor entered by the U.S. Court of Appeals for the District of Columbia Circuit in the matter of Bellagio, LLC v. The National Labor Relations Board.  We first reported on this case in August 2015 after the National Labor Relations Board (NLRB) determined that the Bellagio violated an employee's Weingarten rights under the National Labor Relations Act (NLRA) by placing an employee on a suspension pending investigation (SPI) after he refused to complete a written statement without the assistance of a union steward. The Bellagio appealed this decision and successfully convinced the D.C. Circuit Court that the Board was wrong.
 
The federal court determined that the Board's findings "rest[] on a perverse reading of the record" and that the "actions of the Bellagio's supervisors were fair, reasonable and entirely consistent with Weingarten." The court also reversed the Board's determination that the Bellagio retaliated against the employee by placing him on SPI, finding that the SPI was not discipline and did not, without more, constitute an adverse action.
 
The court rejected the Board's conclusion that the Bellagio engaged in unlawful coercion by instructing the employee not to discuss his SPI.  The court concluded that the supervisor was not trying to stop the employee from discussing his discipline with his coworkers and was simply enforcing the SPI by ensuring that the employee left the property - which, "given the circumstances in the case," was a "perfectly reasonable" instruction.
 
This common-sense decision from the D.C. Circuit Court is a welcome breath of fresh air for employers. Unfortunately, unless the NLRB vacates its decision in this case, the court's decision is not binding in the Ninth Circuit.  Nevertheless, congratulations to the Bellagio and its supervisors for a great result.  To read the court's decision, click here.