The NLRB suffered a setback this week when its interpretation of Weingarten rights was rebuffed by the D.C. Court of Appeals. This is the same court that recently declared the agency was acting more as an “advocate than adjudicator” in a case involving access to an employer’s premises.

Weingarten, which derives its name from the United States Supreme Court’s decision in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), is one of those fundamental knowledge areas about which all practitioners in labor relations must understand. Weingarten applies only to union represented employees and the “right” is that the employee must be allowed to bring union representation to an employer interview if he/she reasonably believes the interview might result in discipline. Simple? Yes, in theory. In practice, however, the application of Weingarten sometimes has proved difficult as union representatives urge the widest possible application while employers seek to narrow its interpretation. This difference of perception, if not interpretation, has led to a number of litigated disputes. For instance, can the union assert representation on behalf of the employee or must the employee assert it? Does the employee get to pick the particular union representative? What if the chosen union representative is unavailable during times the employer wants to conduct the interview? What is the role of the union representative? Are they suppose to be an advocate or merely a witness? Does a Weingarten violation overturn any discipline that is issued? One union even argued that a search of an employee’s vehicle constituted an “interview” which triggered Weingarten. These issues, and others, have vexed employers (and labor representatives) for decades and there is a great deal of Board law interpreting Weingarten in myriad situations.

Sometimes even the Board’s interpretation is not correct.

Midwest Division-MMC, LLC v. NLRB, No. 15-1312 (D.C. Cir. August 18, 2017) involved a Kansas hospital where the nurses were represented by a union. Under Kansas state law, hospitals must establish an internal peer-review program to monitor the level of care given by professionals to patients. The purpose of the committee is to inquire into alleged violations of the standard of care by the hospital’s nurses. Serious breaches of the standard of care are reported to the state licensing agency. If the state licensing agency –called the Nursing Board– finds that the nurse has violated the standard of care in a serious manner (i.e., one that might result in a “reasonable probability of causing injury to a patient”), the Nursing Board can strip the nurse of his/her license.

Background Facts

The hospital employer’s peer review committee sent letters to two nurses alleging that they had “exhibited unprofessional conduct as defined by the Kansas Nurse Practice Act.” The letters stated that the nurses’ “conduct preliminarily has been determined to be a Standard of Care Level 4: grounds for disciplinary action.” The letters stated each nurse would have “an opportunity to address the Peer Review Committtee regarding any potential reportable incident prior to any final determination of a Standard of Care by the Committee.” The letters stated that the meeting would occur only “if you choose.” The nurses were also given an opportunity to submit a written response in lieu of an appearance.

Both nurses asked to have union representation accompany them to the hearings. One nurse asked before the interview began; the other asked after the interview had started. These requests were denied. The hearings proceeded with both nurses electing to participate. After the hearing, the Committee found the nurses’ conduct was a violation of the standard of care but of a lower level than alleged and therefore the finding would not be reported to the Nursing Board.

The union filed charges over the refusal to allow union representatives to accompany the nurses. (The union also alleged a failure on the part of the hospital to supply information requested by the union related to the investigation, as well as an allegation that an employer policy concerning confidentiality was overbroad but those are less interesting.)

Both ALJ and Board Find Violation In Denial Of Representation

The Administrative Law Judge and then the Board found the employer violated the law with respect to all three allegations. As to the Weingarten allegation, the Board concluded that the nurses’ Weingarten right had been infringed because the denial occurred at the time of hearing, which the Board concluded gave rise to an obligation by the employer, “at that point to give the employees the opportunity to cease their participation in the meetings.” The employer appealed.

Court Disagrees with NLRB, Refuses Enforcement on the Weingarten issue

In analyzing the Weingarten issue, the appeals court turned to the Supreme Court’s decision and quoted the language as to the circumstances surrounding the right to union representation:

Weingarten affirmed the Board’s conclusion that it would be a ‘serious violation of the employee’s individual right to engage in concerted activity by seeking the assistance of his statutory representative if the employer denies the employee’s request and compels the employee to appear unassisted at an interview which may put his job security in jeopardy.’

The appeals court ruled that the right is “infringed” when the employee is compelled to testify. Conversely, the court held, “absent compulsory attendance, the right to union representation does not arise: the [Supreme] Court expressly grounded its decision” on the notion that the employer could carry on its investigation without interviewing the employee and “‘thus leave to the employee the choice between having an interview unaccompanied by his representative, or having no interview.'”

The appeals court concluded that because the employer had stated in its letter that the employee could attend “if you choose” or submit a written response, attendance was not compulsory and Weingarten rights were not triggered

The court found there was no support for the Board’s reasoning. The timing of the requests for representation, which were made contemporaneous with the interviews, was irrelevant. The court, again reviewing the Weingarten decision, could find “no suggestion that the NLRA requires an employer to renew advice to an employee that her attendance at a hearing is optional. And the Board cited no judicial or agency precedent establishing such a precedent.”

The court concluded its analysis by noting that the Board decisions relied upon by the agency were distinguishable because the employers in those cases compelled attendance in the interview.

Takeaways

This case is another example of the agency pushing the law by attempting to impose incremental changes, in this case adding the requirement that the employer’s initial advice that the meeting was optional be renewed when the request for union representation was made at the interview. This case was easy for the court to decide because the language of Weingarten is clear in its requirement that the meeting be compelled in order to trigger the right to union representation.

The employer’s written advice helped avoid any dispute in this case. Without the letter, whether the employee’s participation was optional would have been in dispute and the outcome of the case might have turned out differently.

Should an employer compel the interview? There are good reasons not to. It is frequently the advice that employers don’t compel an interview for the simple reason that one cannot sit an employee in a conference room and “sweat” them like they do on Law and Order. Sure, the employer could punish an employee for refusing to participate but that gets farther way from the issue that led to the interview. It is easier to give an option and tell the employee that the employer very much wants his/her participation but is prepared to make a decision without it. If the employee chooses not to attend the employer will make a decision on the issue with the facts it has before it. As the Supreme Court knew 42 years ago, many employees still will participate even without representation because the meeting often is the only opportunity to learn more about the issue and rebut claims.

Sometimes, parties to a collective bargaining agreement set forth Weingarten rights in the contract. Since the right only applies in unionized settings it is a good idea to check the collective bargaining agreement to see if there are additional requirements agreed upon by the parties. If the agreement is silent on Weingarten the employer should set internal guidelines about how to handle requests for representation to expedite the investigation and to minimize any problems.

Finally, because the rights afforded by Weingarten are still contested today, it is best to keep up on the law in this area.