UNION REPRESENTATION AND THE

DISCIPLINARY INTERVIEW

Employee Rights Under The Weingarten Rule

An employee who is called to an interview with his or her employer which may lead to some disciplinary action is entitled to union representation. In NLRB vs. Weingarten and its companion case, IGLOO vs. Quality Mfg. Co. (88 LRRM 2689), the Supreme Court agreed with the NLRB that an employee has the right to union representation at an investigatory interview the employee reasonably believes will result in disciplinary action. Seeking union representation in a confrontation with an employer, the Court said is protected activity within the meaning of

Section 7 of the National Labor Relations Act. The. Court added these limitations to its ruling:

(1) The right arises only when the employee requests union representation;

(2) Exercise of the right to union representation may not interfere with "legitimate employer prerogatives such as the employer's right to conduct an interview without undue delay;

(3) An employer need not justify it's refusal to permit union representation but may go forward with the investigation from other sources;

(4) The employer is under no duty to bargain with the union representative during an investigatory interview and may insist on hearing only the employees account of the matter being

investigated. (There is of courses a duty to bargain during a disciplinary interview, as there

would be during a grievance hearing.)

In subsequent decisions, the NLRB has expended the right to union representation.

Prior Consultation: The right to union representation at a disciplinary interview includes a right of prior consultation between the employee and the union representative. (NLRB V5. Amass, Inc. 94 LRRM 1177)

Refusal to Participate: An employee may refuse to participate in an investigatory interview where a request for union representation has been made and denied. (NLRB vs. Glomac Plastics, Inc., 97 LRRM 1441)

Counseling Sessions: The right to union representation may also be invoked at counseling sessions held by an employer to discuss production quotas where such sessions were "a preliminary step to imposition of discipline" (NLRB vs. Alfred M. Lewis , Inc., 95 LRRM 1216). However, the right to representation does not extend to instances of normal counseling. In NLRB vs. Amoco Oil Co. (99 LRRM 1017), employees were denied union representation at counseling sessions for absenteeism in view of the supervisors assurances that the sessions were not disciplinary meetings and would not be recorded in their personnel files. The Board has also said that the Weingarten rule does not apply to "run-of-mill" shop-floor conversations where instructions are given or work techniques are corrected and there is no reasonable basis for an employee to fear an "adverse impact" from the interview.

Interference with Employee Rights: An employer has unlawfully interfered with an employee's right to union representation at an interview by threatening the individual that the exercise of this right would result in more severe discipline. (NLRB vs. Southwestern Bell Telephone Company, 94 LRRM 1305)

Not all of the post-Weingarten rulings have expanded the right to union representation, however.

Request for a Particular Union Representative: The employer is not required to postpone an interview with an employee because a particular union representative is unavailable, nor is the employer obligated to suggest or secure alternative representation for the employee. An employee's right to representation may not interfere with legitimate employer prerogatives, and the NLRB has held that the right to hold an interview without delay is such a prerogative (NLRB vs. Coca-Cola Bottling Co.. 94 LRRM 1200)

Informing an Employee of a Disciplinary Decision: Union representation is not required to inform employees of disciplinary decisions which have already been made by the employer. When an interview is held solely to tell an employee of a disciplinary decision which has already been made and which was based on facts and evidence obtained prior to that interview there is no Section 7 right to union representation. However, if the employer engages in any conduct beyond merely informing the employee of a previously made disciplinary decision, then the full range of Weingarten protections may apply. (NLRB vs. Baton Rouge Water Works Co., 103 LRRM 1056)