Smith said a public employee who is covered by a collective bargaining agreement has the right to the presence of a union representative at an investigatory interview with his or her employer if the employee reasonably believes the meeting could result in disciplinary action.
Those rights, Smith said, are referred to as an employee’s “Weingarten rights” because the principle was created in the 1975 U.S. Supreme Court case National Labor Relations Board v. J. Weingarten Inc, 420 U.S. 251 (1975).
If the meeting between O’Donnell and his superiors were to qualify as an investigatory interview, thereby attaching Weingarten rights, it must have been “calculated to form the basis for taking disciplinary or other job-affecting actions against O’Donnell because of past misconduct,” Smith said.
PEMA argued the letter could not be used to determine the purpose of the meeting because it was drafted before the meeting. Therefore, PEMA argued, it could not have taken into consideration what actually happened at the meeting.
But Smith said the board properly concluded that the letter said O’Donnell would be provided an opportunity at the meeting to respond to the allegations of unsatisfactory job performance.
“One obvious alternative for PEMA following the interview and the private recess session was for the employer not to discharge O’Donnell and withhold the letter if his responses were unsatisfactory,” the board explained in its order.
Making Whole
PEMA also argued it should not have to make O’Donnell whole. PEMA said the only proper remedy for violating Weingarten rights is for the board to issue an order for an employer to cease and desist its unfair labor practice.
The board had said its decision was consistent with the National Labor Board’s decision in Kraft Foods Inc., 251 NLRB 598 (1980).
“Under Kraft Foods, once a Weingarten violation has been established, the burden shifts to the employer to establish that it did not impose the discipline based upon information that it obtained at the unlawful interview,” Smith said. “If the employer fails to carry that burden, then a conventional make-whole order will be issued.”
The board recognized that the Kraft Foods decision was overruled by Taracorp Industries, 273 NLRB 221 (1984), but declined to follow it.
PEMA agreed the board was not required to follow NLRB precedent, but argued its order to make O’Donnell whole was inconsistent with its own precedent, relying on two proposed decisions.
Smith said the board is not bound by proposed decisions, although “the board should not disregard consistent trends in the work of its hearing examiners.”
O’Donnell’s case was the first in which the board addressed in a final order the proper remedy for an employee terminated as a result of an unlawful interview, Smith said, and the decision it made was a good one.
“The board was properly cognizant of the proposed decision in which hearing examiners had reached conclusions contrary to Kraft Foods, but the board chose not to follow those proposed decisions, as was its prerogative,” Smith said.
