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HR MATTERS E-TIPS
THIS WEEK’S E-TIP: Employee Rights in Disciplinary Meetings Q&A
Published by Personnel Policy Service, Inc.
"Your Policy and Compliance Experts Since 1972"
 
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THIS WEEK’S E-TIP: Employee Rights in Disciplinary Meetings Q&A

Do you have to allow employees to bring a coworker to a disciplinary
meeting? The answer depends on whether there is a union representing
the employee.
 
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THIS WEEK’S E-TIP: Employee Rights in Disciplinary Meetings Q&A

Q: We are conducting an investigation into allegations of
misconduct by an employee, and, when we notified him that we wanted
to discuss our findings with him, the employee asked to bring a coworker
to the interview “as a witness.” Do we have to allow him to have the
other employee present?

A: You don’t currently have to if the employee is not represented
by a union. In union workplaces, a represented employee has the right
to have a union representative present, upon request, during an
investigatory interview, if the employee reasonably believes that the
interview may result in discipline. (Download free Disciplinary Procedure
model policy
.)

This representation right is known as the Weingarten right because it
stems from the Supreme Court’s 1975 decision in NLRB v. Weingarten
Inc., 420 U.S. 251 (1975). In Weingarten, the Court determined that the
right to union representation during these interviews falls within Section 7
of the National Labor Relation Act’s (NLRA) guarantee that employees
may engage in “concerted activities for the purpose of mutual aid or
protection.”
[ez/tpl/inc/free-access.htm]

However, the National Labor Relations Board (NLRB) has found that
union employees cannot insist on having a representative present during
a meeting if the meeting’s sole purpose is to notify the employee of
previously decided disciplinary action. See, e.g., Baton Rouge Water
Works Co., 246 N.L.R.B. 995 (1979). In addition, the employer may not
retaliate against the employee for requesting representation. See
Slaughter v. NLRB, 876 F.2d 11 (3d Cir. 1989).

(Note that the NLRA’s definition of who is an employee protected by the
Act does not include supervisors. A supervisor is defined as “any
individual having authority, in the interest of the employer, to hire,
transfer, suspend, layoff, recall, promote, discharge, assign, reward, or
discipline other employees, or responsibility to direct them, or to adjust
their grievances, or effectively to recommend such action.” In addition,
the supervisor must use independent judgment in the exercise of such
authority and cannot act in merely a routine or clerical nature.)

 
Nonunion employees, however, currently do not have the right to have a
representative present during a disciplinary investigation or interview. In
IBM Corp., 341 N.L.R.B. No. 148 (2004), the NLRB found that the
Weingarten right to representation during an investigative interview does
not apply to nonunion employees. The Board cited several policy
considerations for its decision, including the fact that nonunion workers
do not represent the interests of the entire workforce in the way that a
union representative does and do not have the same skills and
knowledge of internal policies as union representatives have.

With this decision, the NLRB overturned the position it had followed
since 2000 allowing for coworker representation during these interviews,
as an exercise of their right to engage in concerted activities under the
NLRA. See Epilepsy Found. of N.E. Ohio, 331 N.L.R.B. 676 (2000),
enfd. in relevant part, Epilepsy Found. of N.E. Ohio v. NLRB, 268 F.3d
1095 (D.C. Cir. 2001), cert. denied, 536 U.S. 904 (2002) (finding that the
Weingarten right applies to both nonunion and union employees). The
IBM Corp. decision marks the fourth time since 1982 that the agency has
flip-flopped its position on this issue.

Because the President appoints members to the five-member NLRB for
staggered five-year terms, there is a good chance that the previous
Epilepsy Foundation rationale advocating nonunion representation could
be reinstated. Currently, the NLRB is operating with only two members,
so President Obama will have an opportunity to appoint three new
members who could be more likely to favor representation for nonunion
employees.

But, for now, the Board’s current position allows management discretion.
While a coworker may genuinely be concerned about another employee
who is being investigated, that coworker likely will not act in a way to
further the workplace rights of other employees as a group, as the NLRA
intends. At best, a coworker can lend moral support and act as a
witness for the employee. At worst, he may impede your ability to
implement your policies and procedures or jeopardize a confidential
investigation. (Download free Disciplinary Procedure model policy.)

You should note, though, that even though nonunion employees are not
entitled to representation, you still may not retaliate against them for
requesting representation at an investigative or disciplinary proceeding.
See Wal-Mart Stores, Inc., 343 N.L.R.B. No. 127 (2004). So, while you
can refuse the employee’s request, you should not discipline him for
asking for the representation.
 
^^^^^^^^^^^^^^^^^^ From Your HR Matters E-Tips Editors ^^^^^^^^^^^^^^^^^^^^^^^^

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Subscribers to the Personnel Policy Manual and HR Policy Answers on
CD can find information on representation and investigatory
interviews in Disciplinary Procedure, Chapter 808, note 18.

If you don’t have the manual, but would like to order a trial review, go to:
http://www.ppspublishers.com/service2.htm

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Information provided in HR Matters E-Tips is researched and reviewed
by the HR experts at Personnel Policy Service as well as employment
law attorneys. However, it is not intended as legal advice. Readers are
encouraged to seek appropriate legal or other professional advice.

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