MEETING WITH EMPLOYEES

Have you ever had an employee request the presence of their union representative at a meeting unrelated to discipline? Have you ever had a union demand they be present at every meeting between a supervisor and an employee, regardless of topic? While the demand is not a surprise, the law provides no such right. This article delves into the applicability of “Weingarten Rights” outside of disciplinary meetings.

Employee meetings, particularly those between an employee and HR or an employee and their supervisor, are not infrequent. It is common for a union or an employee to seek the presence of a union representative for that meeting. However, the rights of employees to have their union representative present is actually limited by statutory and case law.

The first case spelling out the rights of employees in these situations was NLRB v. Weingarten, 420 U.S. 251 (1975). This case held that the employer’s denial of their employee’s request that a union representative be present for an investigatory interview, which the employee reasonably believed might result in disciplinary action, was an unfair labor practice. This case created “Weingarten Rights.”

Following Weingarten, New York State was left wondering whether such rights applied under the Taylor Law. Answering that question in the affirmative came Matter of Transport Workers Union of America, 36 PERB 3029 (2002). However, in 2007, Matter of New York City Transit Authority v. New York State Public Employment Relations Board, 8 N.Y.3d 226 (2007) overturned that PERB holding, instead finding that Weingarten Rights were not provided under the Taylor Law. In response, later that year, Section 209-a of the Taylor Law was amended creating subsection (g), which states:

“to fail to permit or refuse to afford a public employee the right, upon the employee’s demand, to representation by a representative of the employee organization, or the designee of such organization, which has been certified or recognized under this article when at the time of questioning by the employer of such employee it reasonably appears the he or she may be the subject of a potential disciplinary action. If representation is requested, and the employee is a potential target of disciplinary action at the time of questioning, a reasonable period of time shall be afforded to the employee to obtain representation. It shall be an affirmative defense to any improper practice charge under paragraph (g) of this subdivision that the employee has the right, pursuant to statute, interest arbitration award, collectively negotiated agreement, policy or practice, to present to a hearing officer or arbitrator evidence of the employer’s failure to provide representation and to obtain exclusion of the resulting evidence upon demonstration of such failure. Nothing in this section shall grant an employee any right to representation by the representative of any employee organization in any criminal investigation…” [Emphasis added].

With the 2007 amendment, it is clear the right to the presence of a union representative may only be exercised where the employee may be the subject of a disciplinary action. Neither the case law nor statutory law indicates any right outside of that. Further, legislative history supports the fact that this right does not apply to every meeting with an employee.

With that background school supervisors should feel comfortable meeting with employees to discuss operational issues, without a union member present. They should not be persuaded or dissuaded by a union or employee claim that such meetings require union representatives. While it is possible unions might want to be at every meeting, Mic Jagger said best, ‘you can’t always get what you want.’

DISCLAIMER

Nothing herein is meant to provide legal advice. You should always contact your attorney for specific advice and counsel on any legal matter you are working on.

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