Although Illinois public sector employers are subject to the Illinois Public Labor Relations Act, a recent case arising under the National Labor Relations Act provides valuable guidance and clarification about the scope of Weingarten Rights.
Weingarten applies only to union represented employees and provides that the employee must be permitted to have union representation at an employer interview if he/she reasonably believes the interview might result in discipline. Interpretations as to what may result in discipline often vary. In fact, the application of Weingarten, can be very unclear as unions often try to expand its application to every conceivable circumstance while employers seek to narrow its interpretation. The consequence of these disagreements has resulted in numerous grievances, arbitrations and cases before various labor boards. The following federal court of appeals decision highlights the varying interpretations and subsequent legal gymnastics parties go through to solidify their positions on Weingarten.
Last August, in Midwest Division – MMC, LLC dba Menorah Medical Center v. NLRB, the D.C. Circuit set aside a NLRB ruling that an employer improperly denied the request of two nurses for union representation in peer review meetings. By way of background, the hospital has a peer review committee which sent letters to two nurses alleging that they had engaged in unprofessional conduct. The letters expressly provided that the nurses’ conduct could be grounds for disciplinary action, however, the peer review meeting would happen only if they choose to participate. In lieu of a meeting, the nurses were also given an opportunity to submit a written response. Although the requests for union representation were denied, both nurses participated in the peer review meeting. Following the meeting, the hospital found that the nurses had violated a standard of care but it was di minimus and would not be reported to the state nursing board. The federal appeals court found that when employees are not obligated to take part in an investigatory hearing, such as the case with the nurses, there is no requirement that they be permitted to bring a union representative if they elect to participate. In particular, the federal appeals court ruled that Weingarten rights are “infringed” only when the employee is compelled to testify. “[A]bsent compulsory attendance, the right to union representation does not arise.”
There are numerous takeaways for Illinois public sector employers outside the healthcare industry.
- First, review existing collective bargaining agreements to determine if there are additional Weingarten requirements agreed upon by the parties. If the agreement is silent on Weingarten, consider creating policy regarding about how to handle requests for representation to expedite the investigation and to minimize any problems.
- Second, employers should consider eliminating mandatory employee interviews. That is because the federal appeals court focused on the language of Weingarten which is clear in its requirement that the meeting be compelled in order to trigger the right to union representation. By doing so, the choice lies with the employee and Weingarten is not triggered.
- Third, evaluate whether peer review is or needs to become a mechanism to monitor and improve services. Similar to the healthcare industry, confidentiality is needed in order to succeed, especially so in higher education where faculty peer review participants have to be assured that their views will be held in confidence, otherwise their assessments will be less candid.
- Fourth, because Weingarten rights are continually contested, resulting in litigation, it is best to keep up on developments. Please contact us if you have any questions about Weingarten Rights and its applicability.
