Union Files “Unfair Labor Practice” Charge
Over Administration Denial of Union Representation

The union filed another “Unfair Labor Practice” charge last month with the Michigan Employment Relations Commission (MERC) after the Administration refused an employee’s request for union representation during an investigatory interview. Prior to a meeting concerning potential discipline, the employee had asked that a representative from the AAUP-AFT accompany him/her. Department managers denied the request and said General Counsel Lou Lessem told them it was Administration policy to due so.

The refusal and the policy are, in our estimate, a clear violation of Michigan labor law. The union has no reason to oppose or accept the merits of discipline in this case, but when an employee asks that a union representative accompany him/her in such a meeting, it is a well-established “Unfair Labor Practice” to deny such representation and insist that the employee appear alone.

“Weingarten” Rights

The right to union representation in an employer-conducted meeting or interview was established by the Supreme Court in the landmark decision of 1975, National Labor Relations Administration vs. J. Weingarten. 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 a private-sector employer, the principle has been adopted and applied by MERC and the state courts to public employees under Michigan’s Public Employment Relations Act.

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. The union representative is not there to pre-judge the validity of possible discipline. A knowledgeable union representative, however, can assist the employer as well as the employee by listing favorable facts which an anxious employee may omit or not know of. The union representative can also serve as a witness.

The Union representative is not allowed to interfere with questioning by answering on behalf of the employee, but the union rep can consult with the member, can object to intimidating or confusing questions, and can raise extenuating factors at the conclusion of the interview.

Know Your Rights!

There are, fortunately, not a lot of occasions where these rights need to be invoked. Interviews that focus on instruction, correction of work methods, or problems within the department don’t usually lead to discipline and are not, therefore, covered by “Weingarten.” But when that rare and unpleasant moment occurs where discipline is at stake, it is important that faculty and academic staff know their rights.

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 request 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 can ask that a union representative be present. 

If the employer responds that there is no possibility that the meeting will result in discipline, then the Weingarten right does not apply. If, however, during the course of an interview the employee has reason to believe that he/she is the potential target of an investigation, then Weingarten rights become relevant. The employee can request that the meeting be rescheduled with a union representative present. If the manager refuses this request, the employee should comply with a direct order to continue the meeting but inform the union immediately afterwards of this violation of labor law.

The second requirement is pretty straight forward. Union representation in any meeting which could lead to discipline is not automatic or mandatory. The employee must to ask for it. 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. 

When in Doubt, Call Us

If any member of this bargaining unit is unsure of whether and how Weingarten rights may apply, do not hesitate to call the AAUP-AFT office (577-1750) or email us with your concerns.

(Contributors to this article include Steve Babson, Information Officer, Gordon Gregory, attorney for our local, and attorney Frank A. Guido, author of an excellent review of Weingarten right for public employees.)

AAUP-AFT, Local 6075 - 5057 Woodward Avenue - Suite 3301 - Detroit, Michigan 48202-4050 - Phone: (313) 577-1750 / Fax: (313) 577-8159