In its landmark 1975 decision in NLRB v. J. Weingarten, Inc., the U.S. Supreme Court held that union-represented employees have a right under the National Labor Relations Act (NLRA) to have a bargaining unit representative present whenever they are being questioned by their employer under circumstances the employee reasonably believes will lead to disciplinary action.
Since Weingarten was decided, the National Labor Relations Board (NLRB), which enforces the NLRA, has sought to expand the scope of these so-called “Weingarten” rights to additional circumstances beyond those carefully defined by the High Court.
The U.S. Court of Appeals for the District of Columbia Circuit had occasion recently to dial back another attempt by the NLRB to broaden Weingarten protections. In Menorah Medical Center v. NLRB, No. 15-1312 (D.C. Cir. Aug. 18, 2017), the court reversed the Board’s finding that an employer’s failure to allow union reps to accompany two nurses invited to appear before a peer review committee investigating their alleged poor performance violated their NLRA rights. In so ruling, the appeals court confirmed that union-represented employees who are invited, but not compelled, to participate in an investigative interview do not have a right to demand – either ahead of or during the meeting – the presence of a union representative at the meeting.
A copy of the D.C. Circuit’s opinion in Menorah is available here.
Members of the Center for Workplace Compliance (CWC) can read more here.