Can an employee bring a "witness" to a disciplinary meeting?

Stacey H

I am meeting with an employee on Monday to put him on disciplinary probation for a serious violation. He is a part-time employee that works as a paramedic for our town. By the way, he is the president of their Union, and did I mention that he is a lawyer by trade? Anyhow, according to their bargaining agreement, in cases where there is a grievance filed, they are allowed "non-employee union rep. access." There has been no grievance filed, however he would like to bring a "witness" with him, which is another employee. There is nothing written anywhere that says I have to do this. I have a strict policy of keeping all disciplinary actions confidential, and having another employee present while I discipline someone goes against this. I crack down hard on those violate confidentiality (some of our managers are such blabbermouths!). If this employee brings his witness with him, I would like to tell the witness to leave the meeting. Can anyone see how I might get burned? Also, what if he decided not to have another employee as a witness, but one of his lawyer buddies instead? Any input/advise is GREATLY appreciated.

Don D

The National Labor Relations Act requires that you allow the employee to be accompanied by a representative of the union. Even when there is no union the act requires much the same, but not an attorney. Another employee, yes. But, in any event, that extra person has no free rein speaking or participating role. More of a witness. Don't deny it.

Stacey H

THANK YOU!!! Sheesh! I'm glad I asked!

System

Don's right. Here's an article on HRhero.com with more info.

NLRB makes sweeping changes for nonunion employers
[url]http://www.hrhero.com/national/nlrb.shtml[/url]

Christy Reeder
Website Managing Editor
[url]www.HRhero.com[/url]

Don D

Christy: Thanks for posting that link. It makes for excellent refresher or first time reading. This should be required reading for all HR staff. x:-)

Theresa Gegen TX

The law under the NLRB is that the employee has the right to have a witness at an investigatory meeting. If the meeting is only for discipline to be given, no witness allowed.

So if it is just to tell the employee, your suspended, your terminated, no right to a witness. But if you are going to ask the employee anything about the misconduct or get into any discussion about the fairness of the discipline, a witness may be required.

Good Luck!

Rockie

It's my understanding that this Weingarten rule applies only to investigatory meetings, not the actual disciplinary meeting. Is that correct?

Or....are you saying, it's different with a union representative. They are allowed to be in disciplinary meetings as well as investigatory.

WT

This is the old Weingarten rights issue. In a union setting, an employee generally has the right to union representation in any meeting where such employee has a reasonable belief that the meeting may lead to discipline. If this is denied, a third party may vacate the discipline. In the case of a union president, he has union representation by definition. An interesting argument could be made that he needs nothing further. I would tell him he can have another "unit" employee with him as a witness. If he picks the employee and his witness blabs the details, this is not your doing. Further, if you at all nervous, bring in your own lawyer to the meeting but in any case, bring a witness from the management so you are not alone.

Don D

As you know, WT, this applies equally to non-union settings, we recently learned from the NLRB.

Hatchetman

Stacy, you say he is a "part time paramedic who works for our town." I assume then this a public sector situation.

If so, then NLRA isn't appicable and the Supreme Court's Weingrten decision isn't directly applicable either nor the NLRB's ruling earlier this year in the "Epilespy Foundation" case. In short, the NLRA doesn't apply to state and local governments.

That's not to say state law or your goverment entity's ordinances addressing employee relations and discipline might not have similar requirements as NLRA and therefore either directly address this issue or indirectly through an aribtrator or oversight commission ruling. Nor, that there may not be a court case regarding due process rights of public employees in your town or state that involve investigatory meetings.

Before you go down the road of arguing that the employee is entitled to a witness because of the NLRA and Epilepsy Foundation case, research your state laws and local employee relation laws. If you have some type of central HR or oversight commission for employee relations for your town then contact them for clarification. Or if you have access to a town legal advisor contact that person.

I know in our jurisdiction, "Weingarten" concepts were incoporated into our the goverment entity's interpretation of employee rights under colllective bargaining agreements because there was an arbitrator's ruling. And our agency has for years also allowed an employee to be represented by a non-union represenative (but that was voluntary on our part).

Steve McElfresh

Stacey,

You have been given some great advice directly responsive to your question and helpful for your imminent meeting. I raise a tangential point that might be of some use in the future.

You note that "I am meeting with an employee on Monday to put him on disciplinary probation . . . ". Your comments suggest that you are not this person's supervisor. Could it be that you have acquiesed to the expectation that HR be the bad news messenger, the deliverer of discipline?

If so, I suggest that it should be a supervisor's job to supervise. It is very appropriate for HR to help decide what steps should be taken, to work with the supervisor to prepare for the meeting, and to be there to help in the process. But it should be be supervisor's meeting, and his/her responsibility to lead and make certain it is done right. If s/he "can't", there is a training, management or discipline problem.

Of course, the very question you asked makes very clear how important it is to have HR involved. No argument with this. But I am struck by how often HR simultaneously undermines their own role AND that of line management by rescuing supervisors from taking the lead role with the tough stuff.

But perhaps I misread the nuance and you understand that already; if so, my apologies and my thanks for the opportunity to rant.

Steve McElfresh, PhD
Principal
HR Futures

408.605.1870

Don D

......and ranting so well at twenty one seconds after midnight on the weekend, I noticed. I don't think I could spell tangential at midnight. You did make a great point Steve. x:-)

Crout

But I am struck by
>how often HR simultaneously undermines their own role AND that of line
>management by rescuing supervisors from taking the lead role with the
>tough stuff.

Ouch! Steve, great insight, but it's too early on Monday to be hit with a black truth.