Circus Circus Casinos, Inc. v. National Labor Relations Board, No. 18-1201 (D.C. Cir. 2020)Annotate this Case
The DC Circuit granted a petition for review of the NLRB's determination that Circus committed three unfair labor practices related to a temporary employee. The court held that the Board engaged in unreasoned decisionmaking by finding unfair labor practices without substantial evidence on the record as a whole and by departing from announced standards in an arbitrary and capricious manner.
The court held that NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), requires an employee to affirmatively request union representation in a manner reasonably calculated to put the employer on notice. In this case, the employee's statement of fact standing alone was insufficient to trigger the protections of the National Labor Relations Act. The court also held that the Board misapplied the Wright Line mixed-motive test by failing to consider the employer's rebuttal case. Consequently, this error is fatal to the Board's finding that Circus violated section Section 8(a)(1) by suspending and terminating the employee because of a protected activity. Finally, the court held that the ALJ witness credibility determinations supporting the conclusion that the employee was threatened is patently insupportable. In regard to the unlawful termination finding, the court remanded for further proceedings.