Only union workers entitled to witness.Byline: ON THE JOB By Dan Grinfas For The Register-Guard Question: When we call an employee in for a disciplinary meeting, do we have to allow the employee to bring a co-worker as a witness or representative? We are a nonunion operation, and we've heard conflicting information as to our obligations. Answer: It is easy to understand your confusion because cases decided by the National Labor Relations Board National Labor Relations Board (NLRB), independent agency of the U.S. government created under the National Labor Relations Act of 1935 (Wagner Act), and amended by the acts of 1947 (Taft-Hartley Labor Act) and 1959 (Landrum-Griffin Act), which affirmed labor's right have changed the rule for nonunion employers four times since 1982. Based on the most recent ruling, the answer to your question is no. As a nonunion employer, you are not obligated ob·li·gate tr.v. ob·li·gat·ed, ob·li·gat·ing, ob·li·gates 1. To bind, compel, or constrain by a social, legal, or moral tie. See Synonyms at force. 2. To cause to be grateful or indebted; oblige. to allow an employee's co-worker to attend a disciplinary or investigatory meeting. Your question raises the issue of "Weingarten" rights. In 1975, the U.S. Supreme Court ruled in the case of NLRB vs. J. Weingarten Inc. that unionized workers have the right to representation during any investigatory interview that they reasonably believe may result in discipline. The Weingarten decision was based on Section 7 of the National Labor Relations Act The National Labor Relations Act (or Wagner Act) is a 1935 United States federal law that protects the rights of most workers in the private sector to organize labor unions, to engage in collective bargaining, and to take part in strikes and other forms of concerted , which says that employees have the right to engage in "concerted activities for the purpose of mutual aid or protection." The Weingarten rule still holds for employees represented under a collective bargaining agreement The contractual agreement between an employer and a Labor Union that governs wages, hours, and working conditions for employees and which can be enforced against both the employer and the union for failure to comply with its terms. . In 2000, a ruling by the NLRB in Epilepsy Foundation of Northeast Ohio extended Weingarten rights to nonunion workers. The nonunion employer in that case denied an employee's request to have a co-worker present at a meeting to discuss workplace misconduct. The employer then terminated the worker after he refused to meet alone with his supervisor and director. The NLRB determined that the employer had committed an unfair labor practice Conduct prohibited by federal law regulating relations between employers, employees, and labor organizations. Before 1935 U.S. labor unions received little protection from the law. in violation of the NLRA NLRA National Labor Relations Act NLRA Northern Late-model Racing Association . In June 2004, that decision was overturned in a case involving IBM (International Business Machines Corporation, Armonk, NY, www.ibm.com) The world's largest computer company. IBM's product lines include the S/390 mainframes (zSeries), AS/400 midrange business systems (iSeries), RS/6000 workstations and servers (pSeries), Intel-based servers (xSeries) . In the IBM case, a worker accused several others of harassment, and the company conducted interviews with those individuals. During a second round of interviews, three of the employees requested to have a co-worker present. IBM refused, and the three were later terminated. Based on the Epilepsy Foundation case, an administrative law judge administrative law judge n. a professional hearing officer who works for the government to preside over hearings and appeals involving governmental agencies. They are generally experienced in the particular subject matter of the agency involved or of several agencies. initially ruled that IBM had committed an unfair labor practice. But on appeal, the NLRB overturned its prior ruling, finding that "on balance, the right of an employee to a co-worker's presence in the absence of a union is outweighed by an employer's right to conduct prompt, efficient, thorough and confidential workplace investigations." The bottom line? Employers today are only obligated to grant Weingarten rights in unionized workplaces. Even in union settings, it is up to the employee to invoke his or her rights. Union employees sometimes confuse Weingarten rights with Miranda rights Miranda rights (Miranda rule, Miranda warning) n. the requirement set by the U. S. Supreme Court in Miranda v. Alabama (1966) that prior to the time of arrest and any interrogation of a person suspected of a crime, he/she must be told that he/she has: "the right to . Under Miranda rules, police who question criminal suspects have an affirmative obligation to notify them of their right to remain silent and to have attorney representation. The Weingarten case, however, does not require employers to notify an employee that he or she has the right to union representation. The employee has to ask. Union employees have Weingarten rights with respect to investigatory interviews. But not every discussion with a supervisor is an investigatory interview. For example, an employee wouldn't have a right to have a co-worker present for routine discussions with management or in a case where a supervisor merely describes the proper way to do a job. The answer could change if the conversation becomes hostile, such that the employee has a reasonable belief that it may lead to discipline. If a union employee does request representation, either before or during an investigatory interview, the employer has three choices: Grant the request and delay questioning until the union representative arrives; deny the request and end the interview immediately; or give the employee a choice of having the interview without representation or ending the interview. On The Job is written by attorney Dan Grinfas of the Oregon Bureau of Labor and Industries The Oregon Bureau of Labor and Industries is an agency in the executive branch of the government of the U.S. state of Oregon. It is headed by the 'Commissioner of Labor and Industries]], a nonpartisan, statewide elective office. The term of office is four years. . Contact BOLI BOLI Bank-Owned Life Insurance BOLI Bureau of Labor and Industries at (503) 731-4200, or BOLI, 800 N.E. Oregon St. No. 32, Portland, OR 97232. |
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