Based on a Supreme Court decision: NLRB v. Weingarten, Inc. 420 U.S. 251 (1975), the Massachusetts Labor Relations Commission has adopted these rules.
During a disciplinary interview, an employee has a right to union representation.
This right is triggered by a reasonable belief that discipline (reprimand, suspension or dismissal) might be the outcome of the interview.
The employee must request representation. The request can be made before or during the interview. The employer is under no legal obligation to inform eth employee of this right.
The employee can choose his/her representative, provided that the investigation is not unduly delayed and the choice does not unduly disrupt the employer’s operations.
The employee cannot be punished for asking for a representative.
If an employee asks for representation, the employer has three (3) lawful alternatives:
Discontinue the interview;
Grant the request and delay the interview;
Allow the employee to choose whether to go forward without representation or to discontinue the interview.
If a request for representation is denied, and IF it is truly a Weingarten situation, the employee can arguably refuse to answer questions. However, because the law is complex and changing, it is usually wiser for employees to repeat their request, then cooperate (as minimally as necessary). Labor Relations Board charges can be filed later.
If you are called to a meeting by an administrator:
1) Ask what is the reason for the meeting. (The administrator must tell you the reason for the meeting if asked.)
2) Ask if the meeting could, in any way, lead to you being disciplined.
3) Unless the answer is a clear “No,” state the following:
“I respectfully request that I have an Association representative at the meeting. Until my representative is present, I choose not to answer any questions.”
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