Originally appeared in the CAS Weekly Newsletter
Dear Legal Mailbag:
One of the teachers in my building has a lot of anger, and every time we talk, I am worried that he is going to erupt. His latest gambit is to insist that he will not talk to me or to the assistant principal without his union representative present.
I oversee a busy middle school, and I can’t be bothered to track down a union representative every time I need to talk with this fellow. Moreover, if I set a precedent with this teacher, who knows who else will want similar treatment?
The president of the teachers’ union has told me that I should be respectful of this teacher’s right to have union representation in his interactions with me. I have responded by telling the union president that this teacher should be respectful of my need to operate the school efficiently. Please let me know that I am right, and that the union president is wrong.
You Talkin’ to Me?
Legal Mailbag is pleased to clarify the rules of engagement between a supervising principal and a teacher (or any other union employee). There is a big difference between talking with a subordinate, on the one hand, and interrogating that subordinate, on the other.
In the seminal case of NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), the United States Supreme Court affirmed a decision of the National Labor Relations Board that the National Labor Relations Act confers upon union employees the right to have union representation when an employer conducts an “investigatory interview,” i.e., when the employer is asking the employee questions, the answers to which give the employee reasonable cause to fear for his or her job security. Our Connecticut State Board of Labor Relations, which administers the public sector labor laws in this state, has adopted the Weingarten rule, Trumbull Board of Education, Dec. No. 1635 (St. Bd. Lab. Rel. 1978), and we refer to employee rights to union representation in investigatory interviews as exercising their Weingarten rights. Interestingly, the Connecticut State Board of Labor Relations has applied the Weingarten rule to meetings with supervisors as part of the teacher evaluation process, and when a teacher has a reasonable fear for his or her job security in the evaluation process, the teacher has the right to have union representation at the related meetings. East Hartford Board of Education, Dec. No. 2256 (St. Bd. Lab. Rel. 1983).
The situation you have described is very different. While you must follow the Weingarten rule when you are seeking to elicit information from an employee that could reasonably cause the employee concern for job security, normal interactions in which you direct the employee to do something or otherwise convey information to the employee are not subject to employee Weingarten rights. The State Board of Labor Relations has drawn this distinction and ruled that an employee does not have the right to union representation when the employer is simply conveying a directive or other information, even when the employee specifically requests union representation. State of Connecticut, Department of Children and Families, Dec. No. 4529 (St. Bd. Lab. Rel. 2011).
Finally, it is important to resist the impulse to downplay the need for union representation. A supervisor may be talking with a union employee when the employee suddenly realizes that he or she may be in trouble, and the employee has the right at that moment to exercise Weingarten rights and request union representation. The choice for the supervisor at that point is to terminate the conversation or to reconvene with a union representative present. Supervisors should not ask the employee simply to finish the conversation. Further conversation at that point would violate the employee’s Weingartenrights, and in subsequent disciplinary proceedings the employer could not use whatever information is obtained through further conversation after the employee has requested (but has not been afforded) union representation.