Labor Board Tried (but Failed) to Expand Weingarten Rights to Non-Union Companies

An employee’s Weingarten rights is something that everyone dealing with a unionized workforce is familiar with. Perhaps you didn’t know the name, but you know that union employees are entitled to have a representative present during compulsory, investigatory interviews that may lead to discipline. Weingarten rights only apply to union employees. This is black letter law. The nuances can be tricky, though.

These nuances have led to a lot of litigation. For example, 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 not available during times the employer wants to conduct the interview? What is the role of the union representative during the interview – is the representative an advocate or a listener? Does a violation of Weingarten rights overturn discipline administered as a result of the offending interview?

Here, two nurses received a “peer review” letter alleging that they “exhibited unprofessional conduct” as defined by the Kansas Nurse Practice Act. Each nurse was granted an opportunity to address the Peer Review Committee regarding any potential reportable incident. The letter stated this meeting would occur “only if you choose.” In lieu of appearance, the nurses could submit a written response.

Both nurses asked for union representation at the meeting. Both requests were denied. In the end, the nurses violated the Act, but the violation was so low that it was not reportable to the Nursing Board. Nonetheless, the nurses filed unfair labor practice charges and the NLRB sued the employer alleging that the nurses’ Weingarten rights were violated when they were denied representation at the meetings. On appeal, the appeals court concluded that because the employer’s letter told the nurses they could attend “if they choose” or submit a written response, attendance was not compulsory and Weingarten was not triggered.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com.

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