We are getting close to the 30^th anniversary of the Weingarten Rights.  It’s funny that I came across an article in a local newspaper about a Florida appellate court ruling that the Manatee County School Board had no right to prevent a high school teacher (under investigation for inappropriate behavior with a student) to have an attorney present when he was to be interviewed by district investigators.  The ruling came after two similar decisions were already made by an administrative law judge and the Florida Public Employees Relations Committee.

The teacher was fired because the District said, “only dues-paying members of the Manatee Education Association — which represents the district’s teachers — are entitled to legal representation by the union, and that private attorneys could not represent members of the bargaining unit.”    This fellow was not union-represented.

I’m not an attorney and I’m not as up to speed where unions are concerned because I don’t deal with them on a regular basis, but from an HR standpoint the decision to not allow representation just doesn’t make any sense to me.   The school board attorney said he “thinks the court ignored the law,” but I disagree.

According to the U.S. Supreme Court (NLRB vs. Weingarten, Inc. 420 U.S. 251, 88 LRRM 2689, 1975), employees have rights to union representation at investigatory interviews – these are called the Weingarten Rights.  The State of Florida agrees (Seitz v. Duval Co. Sch. Bd., Fla. PERC Case #8H-CA-764-1015, G.E.R.R. 767:14,1978).  Violation of this law by an organization results in an unfair labor practice.

Now, an investigatory interview happens when a supervisor questions a employee to obtain information that could be used for disciplinary action or when a supervisor asks the employee to defend his or her conduct.  According to Weingarten, the employee has to make the request; it’s not management’s obligation to inform him of this right.  Under the rules management can either stop the questioning until the rep arrives or call off the interview. 

There is also case law from 2000 supporting the practice of nonunion worker representation at investigatory interviews or meetings that could result in disciplinary action.  As a matter of fact, the National Labor Relations Board (NLRB) ruled that nonunion employees have the right to a representative during an interview that might reasonably lead to disciplinary action. In a close decision issued July 10, 2000 (Epilepsy Foundation of Northeast Ohio, 331 NLRB No. 92), the Labor Board found that the so-called Weingarten rights of unionized employees also apply to employees not represented by a union.

The NLRB goes on to say that the right to representation comes from the right of employees to engage in activities for the purposes of mutual aid and protection under Section 7 of the National Labor Relations Act (NLRA). The Act defines this right as involving employee activity, thus precluding a request for representation by an outside attorney, government agent, or union official.

This is where things get sticky.

From what I’ve read about the case, the teacher did request representation and was denied.

Other news reports say the school district really fired the teacher for gross insubordination, misconduct and policy violations because he did not cooperate with the investigation, not because of the allegations against him.  So, what was he really fired for – denying the interview without representation or for policy violation?

I’m not suggesting that suspension or termination is inappropriate given the serious nature of the allegations against this teacher.  What I am suggesting is that the school district was wrong on preventing the teacher from having representation with him and could have prevented this mess to begin with.

What do you think?

Attorneys Not Welcome? is a post from: The HR Whisperer