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Employer Violates Weingarten by Failing to Allow Active Assistance of a Union Representative

Employer Violates Weingarten by Failing to Allow Active Assistance of a Union Representative

Pursuant to the U.S. Supreme Court case of Weingarten a Union employee called into a meeting with an employer that could reasonably lead to discipline, is entitled to Union representation upon request by the employee and the employer violates Weingarten by failing to allow active assistance of a union representative.

In a recent National Labor Relations Board (NLRB) opinion the NLRB found that an employer violates Weingarten when it refuses to let a Union representative speak during a meeting that could reasonably lead to discipline.  In Berkley University, the NLRB found that the Board has consistently found that an interview is investigatory for Weingarten purposes where, as here, an employee is summoned in front of management to explain his or her version of a disputed event. http://mynlrb.nlrb.gov/link/document.aspx/09031d45819d01dc  See also, Titanium Metals Corp., 340 NLRB 766, 774 (2003) (a meeting to administer predetermined discipline became an investigatory interview when the employer interrogated and searched the employee to obtain evidence in support of its disciplinary decision), rev. granted in part on other grounds 392 F.3d 439 (D.C. Cir. 2004); Storer Communications, 292 NLRB 894, 897 (1989) (finding meeting investigatory where its purpose “was to give the employees an opportunity to tell their side of the story”); Price Pfister, a Division of Norris Industries, 256 NLRB 87, 89 (1981) (a meeting to mete out predetermined discipline was transformed into an investigatory interview when the employer’s broad opening comment—“I understand you had some trouble in the department this morning”—elicited an admission of wrongdoing); Texaco, Inc., 251 NLRB 633, 634 fn. 8, 636 (1980) (although employee was initially summoned to receive discipline, a meeting became an investigatory interview when the employer asked the employee for his side of the story and obtained an admission), enfd. 659 F.2d 124 (9th Cir. 1981); Potter Electric Signal Co., 237 NLRB 1289, 1290–1291 (1978) (obtaining employees’ stories regarding their physical altercation was investigatory), enfd. in relevant part 600 F.2d 120 (8th Cir. 1979).

In Berkley University, the employer made it clear that the meeting was scheduled because the employer was not satisfied with the employee’s refusal to accept that there was a problem with her conduct.  The NLRB found that in these circumstances, the employee reasonably believed that discipline might result from the meeting.  As a result the employer violates Weingarten by failing to allow active assistance of a Union representative and Section 8(a)(1) of the Act was violated.

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