In 1975, the U.S. Supreme Court in the case NLRB v. Weingarten, established the rule that union members have the right to have a union representative present at an interview or meeting that could lead to disciplinary action against the employee. Last Friday, a panel of the U.S. Court of Appeals for the DC Circuit ruled that Weingarten rights only apply to meetings which are mandatory. As a result, the panel partially reversed a NLRB order which had ruled that Menorah Medical Center, a hospital in Kansas, must allow union representatives to join two nurses at investigative hearings before a peer-review committee. The appeals court determined that Weingarten did not apply to these meetings because the employer had made clear that the meetings were optional and remained optional even though they could have resulted in discipline against the nurses. Weingarten rights, the Court held, apply only when an employer “compels” an employee to attend. The court did find that the hospital had committed unfair labor practices in denying the union’s request for information about the peer-review committee, and maintaining a confidentiality rule barring employees from talking about the peer-review committee meetings. Employers should take note that absent compulsory attendance, the right to union representation recognized in Weingarten may not arise.
The case is Menorah Medical Center v. NLRB, No. 15-1312 (D.C. Cir. Aug. 18, 2017).
