You have a right to union representation

by Christy Aumer, ISEA staff counsel

If you or one of your colleagues is called to meet with your employer and there is reason to believe that the employee's professional conduct will be called into question or discipline may result, be sure to request the presence of a union representative at the meeting.

Unionized employees have the right to union representation at investigatory meetings conducted by their employer. The presence of a union representative may help relieve the employee's fear of confrontation and assist the employee in articulating accurate facts and extenuating factors.

The right to union representation was recognized by the United States Supreme Court in 1975 and inheres in Iowa Code section 20.8 (2005), which guarantees unionized employees the right to "engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."

In 1975, in the case of NLRB v. Weingarten, Inc., 420 U.S. 251, 95 S. Ct. 959, 43 L. Ed. 2d 171 (1975), the United States Supreme Court held that unionized employees have a right to refuse to submit without union representation to an interview which the employee reasonably believes may result in discipline. The Court recognized that the purpose of this right, like other labor policies, is to "redress the perceived imbalance of economic power between labor and management." After 1975, the rights to union representation during investigatory interviews became known as "Weingarten rights."

For Weingarten rights to apply, two conditions must be present. First, the employee must have a reasonable belief the investigatory interview will result in discipline. The right does not apply to average, everyday contacts between an employer and employee such as instruction or training. Second, the employee must request representation. The employer is not required to inform an employee of his or her rights to representation. Once the request is made, however, the United States Supreme Court called it a "serious violation" for an employer to deny an employee's request.

When an employee requests union representation, the employer must terminate the interview, discontinue the interview until a representative arrives, or give the employee the option of going forward with the interview and waiving his Weingarten rights. An employee can waive his right to a union representative, but it is never advisable.

The union representative's role during an investigatory interview is to assist the employee in understanding the issues and bringing to light facts favorable to the employee. An employer may attempt to limit the representative's role to an observer, but the United States Supreme Court indicated in the Weingarten decision that the representative may assist the employee as long as they do not interfere with the employer's investigation.

If a situation arises where you or one of your colleagues is in need of union representation, contact your local association leaders and your UniServ Director immediately!

June 2006 Communique