Weingarten Right Does Not Extend to Voluntary Investigatory Interviews

The U.S. Court of Appeals for the D.C. Circuit held that a union member’s Weingarten right to union representation does not extend to investigatory interviews that the employees chooses – but is not required – to attend.

Since the 1970s, the National Labor Relations Board has held that unionized employees who are required to attend an investigatory interview that they reasonably believe might result in disciplinary action are entitled to bring a union representative to the interview – this is known as their “Weingarten” right. In Midwest Division – MMC, LLC dba Menorah Medical Center v. NLRB, the hospital had a nursing peer review committee that examined alleged violations of the standard of care by the nursing staff and reported serious breaches to the state licensing agency. Two nurses were informed of an investigation into their conduct and were offered the opportunity to address the peer review committee. They requested but were denied union representation for their committee appearance. The D.C. Circuit found that there was no violation of their Weingarten right and clarified that this right does not apply if the employee’s attendance is not mandatory, but the employee nevertheless chooses to attend the interview.