UTLO members do not have to be alone when they are questioned by their employer in a situation that might result in discipline.
When do UTLO members have a right to representation?
A UTLO member has a right to representation if at the time of questioning by the employer it reasonably appears that the member may be the subject of a potential disciplinary action.
UTLO members are entitled to representation in the following situations:
- "Investigatory interviews," in which the supervisor is seeking to elicit facts, to have the UTLO member explain his or her conduct, to discover the UTLO member’s "side of the story" or to obtain admissions or other evidence.
- A request for a written statement or written answers about an incident or accident in which the UTLO member’s conduct may be at issue.
- A meeting or discussion in which the employer either has not yet decided whether to impose discipline or is seeking information to support that decision.
UTLO members are not entitled to representation in the following situations:
- When the meeting or discussion is merely to convey work instructions, training, or needed corrections.
- When the purpose of the meeting is simply to inform the employee about a disciplinary decision that has already been made and no information is sought from the employee.
- When the employer has clearly and overtly assured the UTLO member before the interview that no discipline or adverse consequences will result from the interview, provided the employer keeps that promise.
- When, after the employer notifies the UTLO member that he or she is being disciplined, the UTLO member initiates further discussion.
What about investigations that are part of the employer's sexual harassment policy and procedures?
Yes, UTLO members would have a right to representation when the UTLO member being questioned is an alleged harasser or is alleged to have aided or abetted another person's harassment.
What about job performance reviews or evaluation conferences?
Yes, if the review or evaluation occurs under circumstances where answers to questions during the review or evaluation may subject the member to disciplinary action.
How about "counseling" sessions with supervisors regarding absenteeism or drug or alcohol problems?
Yes, if the employer demands information from the member the responses to which may subject the member to disciplinary action.
What about an employer's request that a UTLO member responds in writing to written questions?
Sometimes employers demand that UTLO members provide written statements or written answers to questions about accidents, events, or allegations of misconduct. Sometimes the UTLO member is asked to provide such written information by a certain time (such as, "by the end of the day.") Sometimes UTLO members are invited to a meeting and asked to write their statements or answers right on the spot. When the UTLO member’s conduct is at issue and there is a reasonable appearance that responses may subject the member to disciplinary action, the UTLO member is entitled to the assistance of a union representative in providing written responses, just as with verbal responses. The UTLO Union representative may be able to convince the employer that the questions are inappropriate or that additional questions ought to be asked. Also, whether the UTLO member is responding orally or in writing, he or she is entitled to consult with a UTLO union representative before submitting responses.
Does the location of the interview matter?
No. Although such interviews typically take place in the office of a supervisor, representation rights apply anywhere.
Does the employer have to inform the UTLO member about representation rights before conducting the meeting or interview?
Absolutely not. Representation rights are not like Miranda warnings, which require the police to advise a suspect of his or her rights to remain silent and to have a lawyer present. Absent such a requirement in the UTLO collective bargaining agreement, the employer has no obligation to advise UTLO members that they can have UTLO union representation present. Instead, it is up to UTLO members to know their rights and ask for representation in investigatory interviews in which there it reasonably appears that discipline may result.
What constitutes a “reasonable appearance” that discipline may result?
Whether there is a "reasonable appearance" is not determined by the UTLO member’s subjective feelings. Instead, the question is whether a reasonable UTLO member, given the same circumstances, would believe that discipline could result.
For example: What did the employer say to the UTLO member when announcing or initiating the meeting? Has the employer-provided any oral or written warnings? Have there been oral or written allegations of misconduct? Has the UTLO member been under scrutiny previously? Have other UTLO members been disciplined for conduct similar to that being investigated at this meeting?
What if the employer states that a disciplinary decision has already been made, but then begins to question the UTLO member about his or her conduct? Is there still a reasonable appearance that discipline may result?
Yes. UTLO members should demand representation at any point in any meeting when the employer solicits information pertaining to discipline against the member. When an employer is questioning a UTLO member to obtain information to support or possibly alter its disciplinary decision, representation rights apply. The employer is required to stop the meeting and allow the UTLO member a reasonable amount of time to contact his or her UTLO union representative.
How and when should a UTLO member request representation? When should the request be made?
The UTLO member should request representation as soon as the UTLO member becomes aware that the employer is seeking information that may result in discipline, or that may support a disciplinary decision already made. The UTLO member can request at any time, even in the middle of the meeting. If a UTLO member delays in making the request, the employer is allowed to use any information obtained before the request was made.
How does a UTLO member exercise representation rights?
Simply stating, "I would like my UTLO union representative present" is sufficient to invoke the right. Even questions such as, "Shouldn’t I have a UTLO representative here?" is considered sufficient to assert representation rights. The UTLO member’s request does not have to be in any particular form; no magic words are required, nor does the request have to be in writing.
Does the UTLO member need to repeat the request for representation more than once?
No. It is incumbent upon the employer to provide representation rights, even if the request is made to a lower-level supervisor who is not conducting the meeting and the request is not repeated at the outset of the meeting.
What should a UTLO member do if he or she is unsure whether a particular meeting calls for representation rights?
UTLO members should ask for representation even if they are not sure they're entitled to it. The employer cannot discipline a UTLO member simply for asking. UTLO members could also ask whether the meeting could result in disciplinary action. If the employer answers "no," the employer must follow through on that promise or risk violating the law. If the employer's answer is anything but "no," the UTLO member should ask for representation.
Can an employee "waive" his or her representation rights? How?
Yes. If a UTLO member does not affirmatively ask for representation, he or she will be considered to have "waived" his or her rights. However, as noted earlier, there are no "magic words" required in making the request. All that is required is for UTLO members to say enough to convey to the employer that UTLO representation is requested. If the employer claims that the UTLO member chose to continue the interview without representation, the employer must demonstrate that the choice was voluntary, clear, and unmistakable.
What happens after a UTLO member has requested representation?
Once the request is made, the employer has four lawful options:
1. The employer can grant the request and delay the interview or meeting until the UTLO representative arrives and has a chance to consult privately with the UTLO member;
2. Discontinue the meeting or interview or allow the UTLO member to choose whether to continue unrepresented;
3. Where the UTLO member can raise the denial of a representation request with a hearing officer or arbitrator and to request the preclusion of evidence obtained during the meeting, the employer may continue with the meeting without a UTLO representative; or
4. Forgo the interview entirely.
Does the employer have to provide the UTLO member and the UTLO representative with a copy of the charges that have been made against him or her?
Yes.
If the employer insists that the investigation continue without allowing the UTLO member to have a representative present, may the UTLO member refuse to answer questions or even walk out of the meeting?
The employer may continue with the meeting where the employee has the ability to raise the denial of a representation request with a hearing officer or arbitrator and to request the preclusion of evidence obtained during the meeting.
Note: If the allegations are criminal in nature, such as assault or sexual assault, the right against self-incrimination may apply. The UTLO union would seek the assistance of legal counsel before advising the UTLO member on how to respond to the questions.
Disclaimer:
The information in this article is designed for educational purposes only, to provide general information based on current law. It is not intended to be legal advice. The principles discussed herein do not necessarily apply to all specific fact situations and publication of this information does not establish an attorney-client relationship. Changes in the law after the date this information was published may affect its accuracy. If questions or situations arise about the subject matter of this document, please contact your UTLO representative.