SECTION 11.15 RIGHT OF
REPRESENTATION AT EMPLOYEE MEETINGS WITH
MANAGEMENT: GUIDELINES FOR SUPERVISORS
Background:
The
United States Supreme Court in National Labor Relations Board v. J.
Weingarten, Inc., 420 U.S. 251, 95 S.Ct. 959, L.ED.2d 171 (1974), set forth
an employee’s right to union representation during employer-conducted
investigatory interviews. This right
emanates from Section 8(a)(1) of the National Labor Relations Act (NLRA). The Court reasoned that to deny union assistance
at an investigatory interview is “to interfere with, restrain or coerce an
employee” in the exercise of the individual right of the employee, protected by
Section 7, “to engage in ... concerted activities for ... mutual aid or
protection...” The Court’s holding in Weingarten has become known as the “Weingarten right.”
The
NLRA covers private employers and employees only. Because, however, Section 10.2 of the Iowa
Public Employment Relations Act (IPERA) is identical in language with Section
8(a)(1) of the NLRA, the Public Employment Relations Board (PERB) adopted Weingarten and made the Weingarten right applicable to Iowa
public employees in McCormack v. City of Cedar Falls, 80 PERB 1511
(1980).
Guidelines:
1. The triggering of the Weingarten
right
a. Three prerequisites must exist:
(1) The employee has requested the presence/assistance of a
union representative.
(2) The meeting with the employee is an investigatory interview.
(a) The purpose of the meeting must be to investigate the alleged misconduct
of the employee, rather than to discuss work performance. The right of representation at meetings with
management does not apply to normal employer-employee conversations, such as
the giving of instructions, assignments, training, or needed correction of work
techniques, performance reviews, etc.
Should the employee in these situations request a union representative,
the supervisor is to explain that the Weingarten
right does not apply. Refusal to
continue the meeting without union representation is tantamount to
insubordination. The employee must be
informed that he/she must participate; that refusal to participate will be
considered insubordination, and that insubordination will lead to disciplinary
action. While the right to
representation does not attach to meetings to discuss performance evaluations,
prior to issuing discipline for performance problems or following a less than
satisfactory review, an investigatory meeting should be held with the employee
to discuss the problem and consequences.
The employee has the right to request representation for the meeting.
(b) Employees do not have a right to union representation at meetings
where discipline is to be announced.
Management has completed its investigation and determined the discipline
to be imposed. The employee is merely
being given notice of a predetermined action.
There must be no further questioning of the employee regarding the
circumstances that led to discipline.
(3) The employee reasonably believes that the interview might result in
the imposition of discipline either immediately or in the reasonably near
future.
(a) The right to union representation arises when the employee
has a reasonable basis to believe that discipline may result because of the
information given during the interview.
An employee need not be the subject of the investigation in order to
exercise the right to union representation.
Thus, while management’s intended purpose of the meeting may be
otherwise, it is the employee’s perception of the purpose of the meeting
that is relevant. The employee may come
to this conclusion before or during the meeting.
(b) Some factors that have been considered relevant when determining
the reasonableness of the employee’s belief that discipline may result from the
interview are:
(i) Is it possible that statements or admissions made by the
employee would be used in subsequent actions?
(ii) Has the employee been disciplined before, causing an
expectation of additional discipline?
(iii) Where
is the interview taking place? (Some
employers have certain areas used for limited purposes, such as investigating
alleged employee misconduct.)
(iv) How
has the employer characterized the action?
(If the employer has a rule that unexcused absences will result in
discipline and the employer conducts an interview concerning the employee's
absences, the employee may reasonably infer that discipline may result from the
interview.)
(c) Grant an employee’s request for union representation during an
investigatory interview which the employee reasonably believes might result in
the imposition of discipline.
(i) Although
not required by the Weingarten case,
DAS-HRE has determined that the principles of just cause, the requirements of Loudermill (a U.S. S.Ct. decision which
requires due process before a public employee may be deprived of the employee’s
property interest in continued public employment), and progressive employment
practices mandate that an employee’s request for representation during a Loudermill meeting be granted.
(ii) The
employer will call in a union representative at the employee’s request. If a union representative attempts to thwart
an interview, the employer may find it necessary to offer the employee the
choice between continuing the interview without union representation or not
having any interview. (For further
guidance, see sections 2 and 3 below.)
2. Procedure for granting an employee’s request for a union
representative
a. The Weingarten right does not start until
the interview begins.
b. The Weingarten right includes only the right
to have a union representative (a union steward or elected or appointed union
official) present, not the employee’s private attorney or a coworker (even if
the coworker is a union member; see UE/IUP exception in subsection “e” below).
c. If the employee requests a particular union representative, allow
the employee to have that particular representative present if immediately
available. If the particular
representative requested by the employee is not immediately available, the employee
must utilize the union representative on duty and available.
d. If no union representative is immediately available, the employer
will allow a union representative to be called in, and the following guidelines
are recommended:
(1) If the union representative is within the local area, the
representative is expected to arrive as soon as possible (within thirty (30)
minutes), depending upon the circumstances involved.
(2) If the union representative is not located within the local area,
but within fifty (50) miles, the representative is expected to arrive within
ninety (90) minutes, otherwise, the employer may proceed with the investigatory
interview.
e. Whenever possible, the employer should schedule an investigatory
interview with the employee when there is a union representative
available. This will avoid the problem
of having to wait for the arrival of a union representative from some other
location.
Exception: The IUP collective bargaining agreement provides language slightly different than described in subsection “d” above:
(1) The right to have a steward present shall expire if no steward is
available within two (2) hours of the request for the meeting. The meeting may be held without the steward
present.
(2) Representation may be provided by telephone within two (2) hours if
the representative cannot be personally available.
(3) The employee may have an IUP contract covered coworker present if a
steward is unavailable.
3. The investigatory meeting – questions and the role of the representative
a. When the investigatory interview is delayed in order to grant the
employee’s request to bring in a union representative, the employee has the
right to consult with the union representative prior to the interview. The employee also has the right to be
informed of the nature of the investigation.
The consultation between the employee and the union representative need
be nothing more than an opportunity for the representative to become familiar
with the employee’s circumstances, that is, a meeting lasting no more than five
(5) – ten (10) minutes. Management does
not have to review its case, the information it has obtained, or the specifics
of the alleged misconduct to be discussed.
A general statement identifying the misconduct or problem will suffice.
b. Questions asked during the investigatory interview must be directed to and answered by
the employee, not the union representative.
An employee may be required to answer a job-related question after
having been advised that the information given under the threat of discipline
may not be used against the employee in a present or future criminal
proceeding. This is known as the “Garrity warning.”
The State has agreed with AFSCME that Garrity will only be invoked at the time an employee refuses to answer a question in an investigatory interview.
At the time an employee refuses to answer a question, the employee must be told:
(1) That the employee is being directed to respond to all questions,
completely and truthfully.
(2) That failure to respond to the questions completely and truthfully
is considered insubordination and may lead to disciplinary action.
(3) That any responses that the employee is directed to provide under
threat of discipline cannot be used against the employee in a criminal proceeding.
c. The role
of the union representative is that of an observer on behalf of the
employee. The union representative
ensures that the rights of the employee are
not abridged. There is no obligation for
the employer to bargain with the representative or respond to questions posed
by the representative or employee. The
employer, however, cannot refuse to allow the representative to speak. In listening to the employee’s version of the
incident under investigation, the supervisor is required to allow the union
representative to assist the employee in presenting the facts. This does not give the union representative
the right to interfere with or obstruct the investigation. The employee can properly be directed to
personally respond to the employer’s job-related questions after being given
the Garrity warning, if appropriate.
d. If the
union representative becomes disruptive, advise the employee that the interview
will cease and a decision will be made without the benefit of the employee’s
side of the story or, if agreeable with the employee, the interview will
continue without the union representative present.
e. The union
representative should be given an opportunity to comment on the matter under
investigation prior to the conclusion of the interview.
4. Necessity for documentation during the investigatory interview
a. Detailed notes should be kept on:
(1) Who was present.
(2) Where the interview took place.
(3) The beginning and ending time of the interview(s).
(4) Who said what – quoting the participants as verbatim as possible.
(5) The events leading up to the interview.
Often, the participant will later disagree concerning the substance of the interview. Generally, the party with contemporaneous notes is considered the most credible.
Allowing the employee who is the subject of the investigation to present his or her side of the story should not adversely affect the investigation. Instead, many times the employee will either admit the allegation or offer a sufficient explanation which refutes the allegation and which management can investigate further.
b. The application of the Weingarten
right
To avoid later questions regarding the application of the Weingarten right, as part of the information gathered above, document specific facts concerning the granting of the Weingarten right. Include in this report detailed facts, particularly if a union representative was unavailable, or the interview was discontinued or continued without the union representative because the union representative became disruptive.
5. Change in the nature of a non-investigatory meeting
a. If the employer-employee meeting starts off as a non-investigatory
meeting, keep in mind that the nature of the meeting can change if the
supervisor begins to question the employee regarding the employee’s conduct.
b. If the character of the meeting changes to an investigatory
interview, the employee must request union representation to invoke his/her Weingarten right. However, if the employee requested the
assistance of a union representative at the start of the meeting and was denied
the same because the meeting was intended to be non-investigatory, the employer
will not require a second request. The
employer will simply ask the employee if the employee now desires the presence
of a union representative.
6. Extension of the Weingarten
right to noncontract-covered employees
a. Although not required to do so (DAS-HRE rules are silent on the
issues discussed above), these guidelines, as modified in sub-paragraph “b”
below, are to be followed for noncontract-covered employees as a non-binding
progressive employment practice.
b. Employees who are not represented by a union may be granted, upon
request, the presence of a noncontract-covered coworker during an
employer-conducted investigatory interview which the employee reasonably
believes might result in disciplinary action (either immediate or in the
reasonably near future). An employee’s
request for a person who is a union representative or who is a member of a
bargaining unit will not be granted.