Most school district employers are familiar with an employee’s right to union representation during an investigatory meeting that may result in disciplinary action. But is an employee also entitled to confer with a union representative prior to such a meeting? What if it is the union requesting the meeting with the employee, and not the employee himself? Is the denial of such a meeting a violation of the Municipal Employment Relations Act (MERA)? These issues were recently addressed in Columbia County (Highway Department), Dec. No. 32415-A (Jones, 9/24/08).
Columbia County involved a verbal altercation between two employees working at the Columbia County Highway Department. The incident was reported to a supervisor as a threat of workplace violence. When confronted about his behavior by management, the employee admitted to threatening his co-worker. The employee then indicated that he did not want to discuss the matter any further without union representation. The employee was ordered to wait in the facility’s lunchroom, where he remained for approximately one hour, while the local union president and vice-president were called off a job at another location to come to the Highway Department for the interview.
The union representatives arrived at the Department headquarters knowing only that an employee facing potential disciplinary action had requested union representation. Management thereafter informed them about the altercation between the two employees and indicated that the County was going to conduct an investigation to determine what happened. One of the union representatives then asked to speak to both employees privately before the workers were to be interviewed by the County. The County denied this request, and the investigatory meeting was commenced. During the meeting, the County interviewed several employees, including the two employees involved in the altercation. The two union representatives were present during all the interviews and were allowed to ask questions freely. The next day, one employee was issued a suspension for threatening a co-worker. The discipline was not grieved. However, the union filed a prohibited practice complaint with the Wisconsin Employment Relations Commission (WERC), alleging that by refusing to let union representatives meet with the employee prior to the investigatory meeting, the County interfered with the employee’s rights under MERA, Wis. Stat. § 111.70.
In support of its complaint, the union cited the U.S. Supreme Court’s decision in NLRB v. Weingarten, 420 U.S. 251 (1975), which held that an employee has the right under the National Labor Relations Act (NLRA) to refuse to submit to an investigatory interview without union representation, provided that the employee reasonably believes the meeting may result in disciplinary action. The union argued that Weingarten’s holding has been applied to Wisconsin public sector labor law by the WERC. Moreover, the union alleged that, according to WERC precedent, employees generally have the right to “effective and robust representation.” Furthermore, part and parcel with the right of representation is an employee’s right to consult with union representatives before an investigatory interview. The union claimed that this right was established almost 30 years ago in City of Milwaukee, Dec. Nos. 14873-B, 14875-B, 14899-B (WERC, 8/80), which, according to the union, stood for the proposition that “an employee should have a reasonable opportunity to obtain the presence of and to consult with a union representative before and at various times during an interrogation.” Applying this principle to the facts, the union argued that the accused employee was compelled to attend a Weingarten-type meeting, and because that meeting was conducted the same workday as the altercation at issue, consultation with the union outside of work was not possible. While the union acknowledged that the employee did not request to speak to a union representative before the meeting, it claimed that his failure to make such a request did not mean that he waived his right to consult with union representatives. The union argued that to require an employee to specifically request consultation prior to an investigatory meeting, in addition to requesting representation at the meeting, “would create a hyper-technical requirement that would defeat the purpose of Weingarten and MERA.”
In its defense, the County argued that current law in Wisconsin does not require a public employer to grant a union representative’s request for a pre-investigatory interview conference with an employee, and that City of Milwaukee is distinguishable from the instant matter and is no longer good law. The County noted that it complied with the Weingarten principle when it allowed the employee to have union representation at the investigatory hearing, and that Weingarten was not so broad to create the right now asserted by the union. The County further argued that the employee never even requested a conference with union representatives prior to the investigatory meeting, and “it is impossible for the County to have committed a prohibited practice by denying a request that [the employee] never made.” Moreover, the employee was free to contact union representatives via phone prior to his interview, either before he went to the lunchroom or while waiting in the lunchroom. However, the employee chose not to contact anyone.
The WERC Decision
WERC Hearing Examiner Raleigh Jones agreed that Weingarten was limited in scope, as the County suggested, and that the County did in fact fulfill the requirements under Weingarten when it provided the employee with union representation during the investigatory meeting. However, the Hearing Examiner determined that, because Weingarten interpreted the NLRA and not the MERA, a review of Weingarten alone did not resolve the issue in dispute. Turning to WERC precedent, the Hearing Examiner sided with the union, holding that City of Milwaukee is still good law, and does in fact stand for the proposition that municipal employees have a MERA right to consult with a union representative prior to an investigatory interview. Finally, addressing who may invoke the right to consultation prior to an investigatory interview, and without explanation, the Hearing Examiner simply stated, “The Examiner finds it can be either the employee or the union that invokes this MERA right.” After no petition for review was filed with the WERC, the Commission adopted the decision of Examiner Jones as its own.
In light of the decision in Columbia County, school district employers should ensure that their employees are given the opportunity to consult with a union representative prior to any investigatory meeting that could reasonably lead to disciplinary action. This consultation should be allowed regardless of whether it is requested by the employee or by the union representing the employee.
If you have questions or would like additional information on this decision, please contact your Davis & Kuelthau attorney.