HR Management & Compliance

Disciplinary Meetings: New Ruling Sheds Light on When Employees Are Entitled to Union Representation

A union worker is about to be called into a monthly performance meeting. He asks if he needs union representation, and you say no. Then, because of something that occurs during the meeting, you terminate him. Were you wrong not to put off the meeting until he had representation? We’ll review a recent National Labor Relations Board (NLRB) ruling that examines this issue and explain what it means for your workplace, whether it’s unionized or not.

Employee Requests Union Rep

Southwestern Bell Telephone Co. supervisor Samuel Petty held monthly individual counseling sessions with employees on his team to discuss their production statistics. None had ever faced discipline arising from the monthly meeting or their productivity problems.

Systems technician Roy Paz worked on Petty’s team. One day, Petty told him that area manager Melvin Wilson wanted to meet with him. Paz asked if he could have a union steward present and whether the meeting would affect his job. Petty said a union rep wasn’t necessary.

400+ pages of state-specific, easy-read reference materials at your fingertips—fully updated! Check out the Guide to Employment Law for California Employers and get up to speed on everything you need to know.

Meeting Goes Awry

It turned out that the meeting was being held to evaluate Paz’s recent productivity and behavior problems—including whether Paz’s statement that the “job sucked” and he was “about to snap” indicated a potential workplace violence issue. A few years before, Paz allegedly had made a threat and was warned that future violations of the company’s workplace violence policy would lead to discharge.

During the meeting with Wilson, Paz allegedly made another threat, and he was immediately discharged.

Right to Union Representation?

Paz went to the NLRB claiming Southwestern’s refusal to permit him to have a union rep present at the meeting violated his “Weingarten” rights.

Under the Weingarten rule, spelled out in a 1975 U.S. Supreme Court ruling, an employee has a right to request a union representative be present if a meeting is investigatory—and not held in order to announce a disciplinary decision—and the employee reasonably believes the meeting could result in disciplinary action.

Case Dismissed

Applying this standard, the NLRB dismissed Paz’s claim. The board ruled Paz could not have had a reasonable belief his meeting with Wilson would lead to disciplinary action. Paz claimed he thought he might be disciplined because he was told a few weeks earlier his production output was low. But Paz conceded he never received an official warning about productivity and was never threatened with a warning. And there was no evidence any employee on Petty’s team had previously been disciplined for low production performance.

The NLRB also said there was no reasonable basis for Paz to believe the meeting might result in discipline because of his recent statement that he was about to snap. At most, the NLRB observed, Paz could have expected a referral to the company employee assistance program, which wasn’t used for disciplinary purposes.

What to Do

Although the employer won, it’s often a difficult and close call as to whether an employee has a right to bring a union rep to a particular meeting. In fact, one NLRB member dissented from this decision, stating Paz had a reasonable belief he might be disciplined in light of prior mental instability issues and recent discussions about his lagging productivity.

Thus, it’s important to use caution before refusing an employee’s request for representation. If a worker asks to bring a union representative to a meeting and you’re unsure whether you have the right to refuse, consider postponing the meeting temporarily so that you can evaluate the situation. If the employee is entitled to bring a union rep, you may want to have another manager present as your own witness.

Keep in mind, too, that nonunion workers also have Weingarten rights. They may request to bring a co-worker as their representative in an investigatory meeting.