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Administrative law judge (ALJ) Mary Miller Cracraft, agent of the labor organization, Asset Protection and Security Services, Board's decision, collective bargaining agreement (CBA), Detention Officer Larry Dawson, Employees Rights, labor organization, Law Enforcement Officers Security Unions LEOSU Washington DC, Law Enforcement Officers Security Unions LEOSU-DC, LEOSU, LEOSU Washington DC, LEOSU-DC, National Labor Relations Board (NLRB), Security Union, ULP, unfair labor practice, Union Representation, union-represented employees, Weingarten Rule
July 23, 2015
In a recent decision, the National Labor Relations Board (NLRB) found that the Weingarten rule isn’t so broad that it requires an employer to allow a union employee to have a rank-and-file coworker present as a witness during an investigatory interview. Let’s take a closer look at the Board’s decision.
Background facts
Asset Protection and Security Services provided transportation and detention guards at a federal immigration facility. The company was also a signatory to a collective bargaining agreement (CBA) with the security union. Detention Officer Larry Dawson was involved in a scuffle at work on January 13, 2013. He was suspended as a result of the altercation and placed on unpaid administrative leave for insubordination.
The company scheduled an interview with Dawson to determine exactly what occurred during the fracas. The stated purpose of the interview was to allow him to explain what happened before any discipline was imposed. He initially requested that a union representative be present during the interview. However, the designated union representative declined his request because of some earlier intraunion squabbling involving Dawson.
On January 29, 2013, Dawson arrived for his interview and requested that another detention officer, Donald Zimmerman, act as a witness during the interview. Zimmerman agreed to do so; however, the company refused his assistance, noting that he was on the clock and had work to perform. Because Zimmerman was not a union member or steward under the CBA, he had no special privileges that allowed him to attend the interview.
During the interview, Dawson was uncooperative and refused to answer certain questions or sign the record of disciplinary action. Following the interview, he was discharged for insubordination. He then filed unfair labor practice charges against the company through his union, alleging his Weingarten rights were violated.
Dawson claimed that he requested an employee witness at the interview and the company refused his request and subsequently discharged him. The NLRB issued a complaint, and an administrative hearing was held on the claim.
NLRB’s decision
Administrative law judge (ALJ) Mary Miller Cracraft dismissed Dawson’s unfair labor practice complaint. In particular, the ALJ found that his Weingarten rights were not violated because his “request for an employee witness at his self-represented interview is not a right specifically guaranteed in Weingarten representative is a right to a representative who is an agent of the labor organization [that] serves as the exclusive representative of the employees.”
As the ALJ noted, a union representative at an investigatory interview acts for the entire bargaining unit. A coworker chosen on an “ad hoc” basis might undermine the union’s ability to think beyond the immediate situation and look to precedent.
The fact that Dawson may have had political difficulties with his local union provided no excuse for his failure to have a union representative present during the investigatory interview. As the ALJ found, without specific evidence of animus or bad faith between the union and Dawson, the mere fact that he had been on a competing slate in an earlier local union’s election didn’t create a risk that the union wouldn’t fairly represent him during the investigatory interview.
The ALJ’s decision was appealed to the NLRB by the General Counsel. The Board affirmed the ALJ’s decision finding no violation of Dawson’s Asset Protection and Security Services, L.P., 362, NLRB No. 72, April 22, 2015.
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