By: Frank A. Guido, POAM General Counsel
The right to union representation in an employer conducted meeting or interview was established in the landmark decision in NLRB v J. Weingarten, Inc., 420 US 251 (1975). The Court held that an employee has a statutory right to insist on the presence of a union representative in an interview which the employee reasonably believes might result in disciplinary action. While the Weingarten decision dealt with the National Labor Relations Act (NLRA)and its application to the private sector, the principle has been adopted and applied to public employee rights under PERA by the Michigan judiciary and MERC. Regents of the University of Michigan v Local 1583 AFSCME, 1977 MERC Lab Op 496; Wayne-Westland Education Association v Wayne-Westland Community Schools, 176 Mich App 361, 439 NW2d 372 (1989).
The right to union representation and assistance during an interview is founded in the employee’s right to act in concert with other employees for mutual aid and protection. Section 9 of PERA, therefore, recognizes the same principle found in section 7 of the NLRA.
The purpose of union representation in an interview is to safeguard the employee’s interest as well as the interest of the entire bargaining unit to insure the employer does not impose punishment unjustly. A knowledgeable union representative can assist the employer by listing favorable facts which an inarticulate or fearful employee may omit. E.I. DuPont DeNemours, 289 NLRB 627 (1988).
There are two threshold requirements that must exist to invoke the Weingarten right: (1) The employee must have a reasonable belief the interview may lead to discipline, and (2) The employee must demand a union representative.
Applying the first requirement, the employer’s statement of intention is controlling. When an employee is called in for a meeting without a union representative, the employee should ask whether it is about anything that could possibly lead to discipline. If the employer responds in the affirmative or responds in a way that allows for the possibility of discipline resulting, the employee should demand a union representative. If the employer responds that there is no possibility that the meeting will result in discipline, then the Weingarten right does not apply since the assurance of the employer negates existence of a reasonable belief that discipline may result.
Under the first requirement, the threatened discipline must be of the employee, not discipline of another employee. There is no Weingarten right when the employer is interviewing an employee about another employee who is subject to possible discipline.
The “reasonable belief” standard which determines the propriety of an employee’s request for union representation, is not applicable to an employer giving of instruction, training, or correction of work technique, Weingarten, 420 US at 257-58; giving of notice of discipline, Baton Rouge, 246 NLRB 995 (1979) [Note: Due process rights at termination, Cleveland Board of Education v Loudermill, 470 US 532 (1985).]
The selection of a particular representative is the right of the employee. The employer may not designate its preference of which union representative can appear. City of Fraser, 1992 MERC Lab Op 279. Where a union representative is not immediately available, the employee does not waive the right to have union representation, City of Fraser, 1993 MERC Lab Op 304; Supervalue Xenia, 236 NLRB 1581 (1978). The employer’s denial of an employee’s representative of choice is not a violation of PERA if the demand is for a representative from a far-away worksite and other representatives are readily available. City of Muskegon, 1994 MERC Lab Op 92.
POAM has been at the forefront of fighting for Weingarten representation rights. For example, in Township of Redford, 1984 MERC Lab Op 1056 an interview was being conducted by the Civil Rights Commission in the presence of the employer with questioning by the employer’s attorney. The employer denied a request for a union representative which was a direct violation of PERA. The violation of PERA occurred despite discipline not issuing to the employee.
In other decisions it has been held that an employee is not entitled to a union representative where meetings were held for the purpose of obtaining written statements and the employee was given several days to prepare responses. No questions were asked to the employee during the meeting, hence a “reasonable belief” was absent. Flat Rock, 1996 MERC Lab Op 455.
Where an employee was subjected to a sergeant’s loud and threatening manner and the sergeant took offense to a question raised by the officer during the meeting, the employee possessed a reasonable belief the sergeant intended to discipline, therefore, the officer was entitled to a representative. Charter Township of Clinton, 1995 MERC Lab Op 415.
An employee has a right to seek union representation upon realizing during the course of an investigation that he is not a mere witness but the target of an investigation, even though the request was not made at the inception of the interview. Penn-Dixie, 253 NLRB 91 (1980). Once an employee makes an initial request for a union representative, it need not be renewed in subsequent interviews. Ball Plastics, 257 NLRB 971 (1981).
The right to union representation also exists where an employer has made only a tentative decision to impose discipline prior to an interview. Ohio Masonic Home, 251 NLRB 606 (1980). The announcement by an employer prior to a meeting of the intention to discharge an employee, which results in further questioning of the employee concerning the incident during the course of a meeting which results in institution of lesser discipline, still entitles the employee to union representation. EPG Industries, Inc., 251 NLRB 1146 (1980).
A meeting scheduled to inform an employee of discipline would not prohibit entitlement to union representation where, during the course of the meeting, the employer advised of its intent to discuss the conduct, thereby suggesting the employee respond, which invoked a reasonable fear that additional discipline might be imposed upon the attempt of the employee to defend his actions. City of Kalamazoo, 1996 MERC Lab Op 556.
Members are encouraged to assert their Weingarten right due to the valuable protection it affords:
- The union representative can serve as a witness to prevent the giving of a false account of the interview.
- The union representative can object to intimidating or confusing questions.
- The union representative can warn an employee against losing his or her temper.
- The union representative can raise extenuating factors at the conclusion of the interview.
When the right to union representation exists, the next question is what is the role of the union representative.
The Union representative is not allowed to interfere with questioning by answering on behalf of the employee. City of Oak Park, 1995 MERC Lab Op 576. In NLRB v Southwestern Bell Telephone Company, 730 F2d 166 (5th Cir, 1984), it was held that a union representative must be afforded an opportunity to participate in the investigatory interview, however, the meeting is not to be transformed into an adversary contest. An employer may insist that the union representative not answer questions put to the employee, however, the representative is allowed to consult with the employee and is permitted at the end of the interview to make additions, suggestions or clarifications. In addition, the employee cannot be prohibited from consulting with the representative during the interview. Southwestern Bell Telephone Company v NLRB, 667 F2d 470 (5th Cir, 1982).
Removal of a union representative from an interview subsequent to advice to an employee to only answer questions once, is not a violation of representation where such rigid limitation converts the interview into a formalized adversarial forum contrary to Weingarten. The representative does have a right to object to questions which may reasonably be construed as harassing. New Jersey Bell Telephone Company, 308 NLRB 277 (1992).
A representative during an interview has a right not only to be present but also to participate. As a result, an employer improperly advised a union representative that he was not allowed to speak but could only write notes and whisper in the employee’s ear. Saginaw Township, 1989 MERC Lab Op 1158. Where an employer advised the union representative that his presence was only a courtesy and that the representative had to remain silent and could not interrupt, but had to sit down or be put out, the employer was deemed to have committed an unfair labor practice. Citing National Labor Relations Board decisions under Weingarten, an ALJ held that preventing a union representative from participating or ordering a representative to remain silent conflicts with the Weingarten rule, which contemplates meaningful representation as the role of the representative is to provide assistance and counsel to employees. City of Detroit Recreation Department, 1990 MERC Lab Op 388.
As a matter of practice, POAM recommends that an employee always demand union representation as many employers will allow representation even in situations where no discipline is contemplated. Where representation is denied under questionable circumstances, POAM will consider filing an unfair labor practice charge. In addition, the union representative and employee should be aware of the implementation of Garrity rights during the interview process and be ready to assert the Garrity protection where appropriate.