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Municipal Employee Representation During Employer Meetings After Act 10

By D&K’s School and Higher Education Law Team

2011 Wisconsin Act 10 (Act 10) dramatically changed public sector collective bargaining in Wisconsin, but it did not eliminate a municipal employee’s right to representation during a meeting with the employer that might result in disciplinary action. Act 10 limited mandatory subjects of bargaining to base wages and eliminated fair share agreements. However, it did not change an employee’s right to be represented during a meeting with his/her employer, when the employer compels the employee’s attendance and intends to question the employee, when the employee has a reasonable belief that the meeting may lead to disciplinary action, and when the employee has stated that he/she wants to be accompanied by a representative.

The right to representation is grounded in the individual rights provided by the Municipal Employment Relations Act (MERA). Wis. Stat. § 111.70(2) guarantees that municipal employees have the right to engage in concerted activities for mutual aid and protection. The right to representation is not based on an employer’s duty to bargain with the union. Winnebago County, Dec. No. 32468-C (WERC, 2009). Consequently, the limits on collective bargaining imposed by Act 10 do not affect this employee right.

Wis. Stat. § 111.70(3)(a)1., states that it is a prohibited practice for a municipal employer “to interfere with, restrain or coerce municipal employees in the exercise of their rights guaranteed in sub. (2).” The Wisconsin Employment Relations Commission (WERC) has held that a municipal employer interferes with a municipal employee’s rights under Wis. Stat. § 111.70(2) when it compels the employee to appear at a pre-discipline investigative meeting without representation, if the employee reasonably believes that the meeting could result in disciplinary action and the employee has requested union representation at the meeting. Madison Metropolitan School District, Dec. No. 32065-A (Jones, 2007).

As a general matter, because the right to representation is an individual right, the municipal employer is not technically required to offer union representation to the employee. Rather, it is the employee’s responsibility to request representation if he/she wants to be represented. However, it may be wise to offer the opportunity for representation as a practical matter and/or to carefully document an employee’s decision to forego representation; doing so can help to avoid disputes and conflicting testimony about whether the employer prevented an employee from exercising representational rights. Consequently, an employer should not unilaterally arrange for union representation before the meeting occurs since doing so might inhibit (or be perceived as inhibiting) employee choice, but should take steps to protect itself from claims that it has interfered with that choice.

If a municipal employee requests representation during a meeting with his/her municipal employer and it is reasonable for the employee to believe that the meeting could lead to disciplinary action, the municipal employer must allow the employee to have representation at the meeting and may not proceed with the meeting until the representative is present.

In some cases, however, the employee may not want the union to represent him/her during such a meeting, may want to be represented by a co-worker, or may decide that he/she does not want any representation. Generally, the employee is entitled to make this choice.

The municipal employee being interviewed may not be a dues-paying member of the union certified to represent his/her bargaining unit. Indeed, the municipal employee may not even be in a certified bargaining unit. While these factors may affect whether the employee wishes to have representation during the meeting and who the employee wishes to have represent him/her, ultimately, the right to representation — being an individual employee right — is not abridged by these factors. As a result, employers should not presume that employees have no right to representation in these situations.

There is principled debate about whether this right extends to employees that are not represented by a union. Indeed, the National Labor Relations Board has vacillated on this issue in its own interpretation of the federal counterpart to MERA. Further, the Wisconsin Employment Relations Commission (WERC) has not specifically addressed this issue in a case decided by the agency. Nevertheless, agency officials have indicated that they believe this right does exist and, in any event, municipal employers can protect themselves from allegations that they have committed prohibited practices and prevent reversal of their decisions by accounting for a right to representation under MERA.

One situation that generally is not presented in purely investigative meetings with employees is a meeting concerning the application of a collective bargaining agreement. In these situations, the employer may have to include a union representative in the meeting so that the union can represent its own interests under the contract, because collective bargaining issues as well as individual rights are in play. Although Act 10 limits the issues that will actually be covered by a collective bargaining agreement, there may still be situations where an employer should invite a union representative to the meeting if it plans to meet with an employee and discuss application of or make adjustments under the terms of such an agreement.

There are limits to a municipal employee’s right to representation, which has to be balanced against certain, legitimate interests of the municipal employer. The WERC has held that, in certain situations, an employer’s legitimate business or operational interests mean that the right to representation is subject to reasonable restrictions, so long as those restrictions do not impair the right itself. The WERC has historically balanced these competing rights and interests to serve the underlying purposes of MERA. City of Milwaukee, Dec. No. 14873-B, 14875-B, 14899-B (WERC, 1980).

For example, the WERC has held that an employee may not delay an investigative interview by requesting that a specific union representative attend when another union representative is immediately available. That said, the WERC has also suggested that an employer must grant the employee’s request for a particular union representative, if the representative is available and waiting for him/her would not unreasonably delay the meeting. In one situation, the WERC indicated that there can be circumstances when an employee’s demand for a particular union representative would be reasonable, even if the demand required some delay of the meeting provided that the employer’s legitimate investigative needs would not be compromised by the delay. City of Beloit (Fire Department), Dec. No. 27990-C (WERC, 1996).

In some circumstances, the employer can limit the employee’s choice of a “representative” based on the employer’s right to maintain confidentiality and privacy concerning the employee’s work responsibilities and related information, such as student records. Thus, for example, the employer may refuse an employee’s request to bring his/her attorney, spouse, or clergy with him to a meeting that could lead to disciplinary action. If an employer does decide to allow the employee to bring an attorney or family member to a meeting with the employer that could lead to the employee’s discipline, it is advisable for the employer to make sure the employee and the representative understands that permission to be represented by the outside party has been granted as a courtesy and not as a matter of right under the MERA.

If you have questions or would like additional information on this matter, please contact your Davis & Kuelthau, s.c., attorney.