Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.
Dear Legal Mailbag:
As a principal, I think that most of the employees in my building are great, but there are a few who fall short of my high expectations. When they do fall short, I like to sit them down and talk through what they did wrong. But I don’t like to do all the talking, and I question them closely about what happened and what they will do better the next time.
Last week, I called one of my teachers down to my office for one of these little chats. She showed up on time, but she surprised me when the meeting started by demanding union representation before she would talk to me. With that, she got up to leave. I stopped her, of course, because I had a lot to say. I told her that she didn’t need union representation because I just wanted to have an informal chat with her to get to the bottom of things. But when I started with my questions, she repeated her demand for union representation.
I think that union representatives are a pain, and I just want to talk to my employees without them. Can I tell the teacher and other employees that they must talk with me without a union representative or risk a charge of insubordination?
In this case, that would be a bad idea. You are free to continue to hold employees accountable for their actions. But there are special rules concerning the right to union representation that you must follow.
Our Connecticut State Board of Labor Relations has held that union employees have the right to union representation whenever they are questioned about matters that could cause them to have reasonable concern for their job security. In so ruling, the State Board adopted a rule first announced by the National Labor Relations Board and subsequently affirmed by the United Supreme Court in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975). Here, your little “chat” with this teacher about what she did wrong could certainly cause her reasonably to fear for her job security. Accordingly, she had the right to union representation at that meeting (often called Weingarten rights). You certainly should not charge this teacher with insubordination for simply exercising her right to union representation.
In considering this question further, Legal Mailbag offers some additional observations. First, under the Weingarten rule, you do not have to inform the employee in advance of the right to union representation; the right to union representation is triggered when the employee requests it (though some school districts provide such notification in advance as a matter of practice or because the union contract requires it). Second, when you are questioning an employee, the union representative has limited rights: (1) the right to seek clarification of the question so that the employee understands exactly what is being asked so that he or she can answer accurately, and (2) the right to speak privately to the employee at any time during the interview. As long as you respect those rights, you may insist that the employee answer your questions, and you should take care not to let the union representative hijack your meeting.
Finally, sometimes employees get carried away and demand union representation every time they talk with their supervisors. The Weingarten rule does not give them that right. Union employees are entitled to union representation only when they are being asked questions that could result in discipline. You can always express your concerns (without asking for a response) or issue directives without triggering the right to union representation.