Labor Relations Fundamentals for Community College Districts

the employer thus has an implied obligation to maintain them for the term of the written instrument, or until the benefit is changed or eliminated through the negotiation process. See Section 8; subsection B (7) for further information.

Section 4 A N E MPLOYEE ’ S R IGHT TO R EPRESENTATION

A. R EPRESENTATION IN AN I NVESTIGATORY I NTERVIEW ( W EINGARTEN R IGHTS ) Under EERA, an employee has a right to representation in an investigatory interview or meeting that may lead to disciplinary action, or that an employee reasonably believes the investigation may result in disciplinary action. 98 This right is often referred to as an employee’s “ Weingarten Right,” named after a United States Supreme Court decision that established the right in the private sector under the NLRA. 99 When a supervisor, manager or outside investigator meets with an employee to obtain information regarding performance or behavior on the job, wherein the employee’s answers may result in disciplinary action, the represented employee is entitled to have a union representative at that meeting. The right applies even where a meeting is not labeled “investigatory.” 100 Furthermore, an employee is entitled to union representation at any time the employee’s fear of disciplinary action is reasonable, even if the stated purpose of the meeting or conversation is not investigatory. An employer does not have the obligation to inform an employee of the right to representation. 101 An employee may waive the right by failing to ask or choosing to proceed with a conversation without a representative. However, if an employee requests a representative in an interview and the employer denies the request, the employer may not impose discipline as a result of statements made during the interview. 102 The manager or supervisor should inform the employee of the nature and purpose of the meeting in advance. 103

To avoid a claim from an employee that he or she was denied the right to a representative in an investigatory meeting, employers should offer an employee a representative, in writing, in advance of the meeting, and keep a record of the notice in the investigation file.

LCW Practice Advisor

Typically, an employee is not entitled to a representative in a non-investigatory meeting intended solely to give the employee work assignments, instructions, feedback, evaluation or training where no disciplinary action will result, as generally there is not a reasonable basis for an employee to fear that disciplinary action will result from such a meeting. 104 Nor does an employee have a right to union representation at a meeting scheduled by a supervisor to inform

Labor Relations Fundamentals for Community College Districts © 2019 (c) Liebert Cassidy Whitmore 24