If you're a union employee and your supervisor is planning to call you on the carpet for job performance or ask questions about a workplace investigation, you can have a union rep go with you to the supervisor-employee meeting. But your union rep can't participate in the discussion or spoon feed you answers during the meeting with your supervisor. In case you're not a union member, whether you're entitled to have someone accompany you to a supervisor-employee meeting might depend the supervisor.
No Free Lunch
The idiom, "There's no such thing as a free lunch," literally describes what gave rise to the 1975 U.S. Supreme Court case, National Labor Relations Board v. J. Weingarten, Inc. A supervisor summoned one of his employees to an investigative meeting to talk about allegations that the employee was stealing food. As it turned out, she had violated the company's free-lunch policy. Long story short, she thought the free-lunch policy was company-wide and it wasn't -- employees got free lunch at certain company locations. When the employee asked for a union steward to be present during the meeting, the supervisor essentially said, "No way," which meant the employer interfered with the employee's right to union representation, which violates Section 7 of the National Labor Relations Act.
Section 7 Provisions
Section 7 of the NLRA guarantees employees' rights to participate in concerted activity and choose union representation for "mutual aid or protection" in the workplace. The presence of a union representative during a disciplinary or investigative meeting is to lend support to the employee and to show union solidarity concerning employment actions, which can end up being adverse decisions. That said, the union rep can advise you before the meeting takes place or after the meeting, but she can't tell you what to say during the meeting. The union rep can, however, give you advice during the meeting or ask the supervisor to clarify questions; she just can't respond to questions on your behalf.
Stop the Meeting
Employees generally know when they're being called to a supervisor's office for disciplinary action, but in case you don't know the direction the meeting is headed until your supervisor starts talking, you can ask her to stop the meeting until you can get a union steward to join you. Your employer can choose from three options: stop the meeting and wait for a union rep to join you; cancel the meeting; or ask you to relinquish your rights to have a union rep present. If you're a member of a union and you suspect you're being called to a disciplinary or investigative meeting, don't give up your right to representation.
NLRB Musical Chairs
What started out as union members' rights to representation during employee-supervisor meetings in the 1975 Weingarten case, turned into a musical chairs event for whether the same rights apply to nonunion employees. In 2000, the last year of President Bill Clinton's second term, the National Labor Relations Board voted to extend Weingarten rights to nonunion employees. But in 2004, when President George W. Bush was in office, the NLRB reversed the ruling, and said nonunion employees don't have the right to representation. Lawyers' and legal analysts' creative titles for articles about how Weingarten has flip-flopped over time include, "Precedent and the NLRB: Which Way Does the Wind Blow (Today)?" by Seyferth & Shaw employment lawyer Bradford L. Livingston.
- University of Hawaii - West O'ahu, Center for Labor Education & Research: U.S. Supreme Court NLRB vs. Weingarten, Inc. 420 U.S. 251 (1975)
- University of California, Davis: Human Resources: Weingarten Rights
- Seyfarth Shaw: Employer Labor Relations Blog: Precendent and the NLRB: Which Way Does the Wind Blow (Today)?
Ruth Mayhew has been writing since the mid-1980s, and she has been an HR subject matter expert since 1995. Her work appears in "The Multi-Generational Workforce in the Health Care Industry," and she has been cited in numerous publications, including journals and textbooks that focus on human resources management practices. She holds a Master of Arts in sociology from the University of Missouri-Kansas City. Ruth resides in the nation's capital, Washington, D.C.