Major Weingarten Decision Holds Employee Has Right To Choose Representative

In 1975, the United States Supreme Court held in National Labor Relations Board v. J. Weingarten, Inc., 420 U.S. 251, that under the National Labor Relations Act (NLRA), a union employee enjoys the right to have a union representative join him or her during an investigatory interview the employee reasonably believes may result in discipline. This right of representation, now known as an employee’s Weingarten right, originally applied only to private sector employers covered by the NLRA.

Over time, however, state labor boards have adopted the rationale of the Weingarten Rule, finding that the equivalent of Weingarten rights exists under one or more provisions of state law. Much of the developments under the Weingarten Rule in recent years, most prominently the rights of witnesses to union representation, have come from state labor boards rather than from the National Labor Relations Board (NLRB).

Applying Pennsylvania law, the Pennsylvania Supreme Court recently issued a major Weingarten decision concerning who chooses the Weingarten representative – the employer or the employee. The case involved Donald Vogel, a corrections officer with the Commonwealth of Pennsylvania. Vogel was ordered to an investigatory interview dealing with his alleged missing of roll calls. Before he entered the investigator’s office, Vogel met with Officer Paul Lennert concerning the upcoming interview. Lennert was a board member of the local executive board of the Pennsylvania State Corrections Officers Association. When Vogel started the interview, he requested to be represented by Officer Craig Panko instead of Lennert. Vogel knew that Panko had been counseled for missing roll calls and that the investigator had referred to Vogel’s roll call record while counseling Panko. At the time of the counseling, Panko was a union steward; Lennert did not hold such a position.

The captain conducting the investigation denied Vogel’s request. Lennert then offered to relieve Panko from duty so that he could attend the counseling session. The captain rejected Lennert’s offer and insisted that Lennert stay to represent Vogel during the interview.

The Association filed an unfair labor practice complaint against the Commonwealth, arguing that the captain’s decision to refuse to allow Vogel to be represented by Panko was a Weingarten violation. When the Pennsylvania Labor Relations Board agreed with the Association, the Commonwealth appealed. An intermediate Court of Appeals reversed the Board’s order, finding no Weingarten violation, and setting the stage for the decision by the Pennsylvania Supreme Court. In an exhaustive opinion, the Court reviewed the history of the Weingarten Rule both at the federal level and under Pennsylvania law. The Court noted that the NLRB “has concluded that an employee has the right to choose his or her union representative for attendance during an investigatory interview if the union representative is reasonably available and absent extenuating circumstances. The NLRB has recently held ‘in a Weingarten setting, an employee has the right to specify the representative that he or she wants, and the employer is obligated to supply that representative absent some extenuating circumstances.’”

The Court found that the approach taken by the NLRB and by the Pennsylvania Labor Board was “proper and consistent” with Pennsylvania state law. The Court’s rationale was “the public interest in both the private and public sectors are served by a process that encourages getting to the bottom of the incident at an early stage to avoid unwarranted discipline. The policy behind an employee’s choice of union representative could prevent the governmental employer from expending tax dollars for unnecessary grievance/arbitration litigation and potentially costly back pay awards. Public sector employers and employees profit from making a fully-informed decision prior to disciplining an employee. This benefit is only enhanced by an employee’s choice of union representatives.”

The Court found this rationale particularly applicable in the case of Vogel. The Court observed that “Vogel desired a union representative who was not only a union steward, but also an individual who had some experience in the type of conduct that was at issue in the interview.”

The Court cautioned that the employee’s choice of representative was tempered by the reasonable availability of a union representative and “the absence of extenuating circumstances.” The Court concluded that “in recognizing this important exception, we believe that employers will not suffer in any way from affirming the standard embracing an employee’s choice of union representative, and such standard, exercised within these boundaries, will serve both employers and employees.”

Commonwealth of Pennsylvania v. Pennsylvania Labor Relations Board, 2007 WL 519167 (Pa. 2007).

NOTE: Though the Court used the term on several occasions, it did not define what “extenuating circumstances” might be that would allow the employer rather than the employee to choose the Weingarten representative.

The article appears in our April 2007 issue.