In a recent ruling, the U.S. Court of Appeals for the D.C. Circuit has shed light on the scope of an employee’s right to union representation at an investigatory interview conducted by the employer. The prior case of NLRB  v. J. Weingarten, Inc., 420 U.S. 251, 256 (1975) confirmed that an employee must be allowed to bring a union representative to any investigatory interview that he or she is required to attend, if the employee reasonably believes that the interview could result in disciplinary action. MMC, LLC v. NLRB, No. 15-1312 (D.C. Cir. 2017) involved the appeal of a National Labor Relations Board (“NLRB”) determination that an employer violated its employees’ rights under Section 8 of the National Labor Relations Act (“the Act”) by denying them union representation at a peer-review committee hearing. In the MMC case, the D.C. Circuit held that, since the attendance at the interview was voluntary, the employees’ Section 8 rights to representation under the Act, as clarified in Weingarten, were not triggered.
In the MMC case, the subject employer was an acute care hospital and the employees were two nurses who received letters alleging that they had engaged in unprofessional conduct that had been preliminarily determined to be grounds for disciplinary action. The letters advised the nurses that they would be provided the opportunity to address a peer-review committee hearing prior to a final determination as to their conduct, if they chose to attend. Both nurses decided to attend the hearing and requested union representation, but the hospital’s risk manager refused the requests. The union representing the nurses filed unfair labor practice charges and, after an administrative law judge determined that the hospital had violated the NLRA, the NLRB affirmed that decision.  
In arriving at its decision in contrast to the NLRB ruling, and finding that the denial of union representation at the peer-review hearings did not violate the NLRB, the D.C. Circuit focused on the text of the letters sent to the nurses. As noted, the Supreme Court in Weingartenaddressed the question of the right to union representation at a disciplinary hearing where the employee’s attendance is compelled. In MMC, by contrast, the nurses were given theopportunity to attend the hearing if they chose to do so.  While the Court recognized that the employees may well have had good reason to want to appear at the hearing, including the opportunity to dispute and maybe dispel the allegations, under the Weingarten decision, an employer retained the prerogative to give an employee the choice to attend an interview without a union representative, or have no interview at all. Since attendance at the peer-review hearings in MMC was not compelled, and even though the hearings could have eventually resulted in disciplinary action, up to and including the loss of the nurse’s licenses, no violation of the NLRA was committed by the hospital.
Employers with unionized work forces need to be ever mindful of the evolving state of the law as it comes to judicial interpretation of the requirements of the NLRA. The MMC case serves as an example of how the NLRB can incorrectly interpret a provision of the Act as to a critical provision, such as the right to union representation in a given situation, and the court stepping in, correcting the determination, and thereby fulfilling its role by clarifying the applicable standard for employers and employees alike going forward.
About the Author: Paul Mengel is counsel with PilieroMazza and leads the Litigation Group. He can be reached at [email protected].