Discrimination

Leroy · December 2002

I am a member of management in a GA textile mill that is unionized. We recently discharged 3 employees, 2 of which are Union members. HR called the two union members in with their reps. to explain their actions. The non-union member was not given the same opportunity with representation to come before the company. He is filing discrimination charges against us through EEOC. How do you think we will fare with this charge?

David Hagaman GA · December 2002

Hard to say based on the facts you've listed here. But here are some thoughts. If the non-union member is a member of a protected class under a federal anti discrimination law, such as race, sex, age, etc. and can show pretext or disparate treatment in the application of the rule or policy that brought on the discharge, then that person may have a good claim. The EEOC does not investigate cases of union discrimination; only those claims under other federal laws. The other thought is whether the union denied the non member effective representation. In GA the union must represent all employees in the bargaining unit irrespective of union membership. So that person may have a claim if he or she is in the bargaining unit and the union did not provide that person fair represenatation. These cases can get very sticky and involve some difficult laws. I strongly recommend that you contact your labor lawyer for advice before responding to any government agency or the union.

jaguar1 · December 2002

I am a Chicago management labor lawyer and your question is unclear. Filing with the EEOC is based on protected status discrimination such as race, age, national origin etc. The fact that one employee did not get a meeting with HR is not an issue with EEOC unless that person is using that as an example of disparate treatment because he or she is black etc and the others were white. Under NLRB law there is also a possible argument that the person should have been provided his or her Weingarten right to have a representative of his choice present during the disciplinary meetings, but not enough is known regarding the facts.

Don D · December 2002

Leroy: I'm no attorney, but as I understand it, it is not the company's obligation to provide for representation UNLESS AND UNTIL the employee requests it prior to or during an investigatory meeting that the employee reasonably believes may result in discipline. A request from the employee triggers Winegarten. Had he asked for or questioned you about his right to coworker or union representation, you would have had an obligation; but, in my opinion, no obligation exists in the absence of that. It is also my understanding that if your investigation was already concluded and your meeting was one in which the decision to terminate was being announced, Winegarten does not apply at that point. I do agree that the EEOC will be uninterested if the complaint merely alleges unfair representation or lack thereof, which are NLRA issues.

Discrimination

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