No Need for Union Witness During Police Interrogation with Management Present

The National Labor Relations Board held that an employer did not violate a union worker’s rights during a police investigation of the worker’s gun violence threat by not providing the worker with a union representative because the investigation was conducted by the police, not the company.

Here’s the back story: An EMT learned that the Operations Manager planned to fire the EMT’s girlfriend. The EMT responded by telling his coworker, “if things go the way they are looking, I’ll come shoot everyone here.” The concerned coworker reported these comments to management who contacted the police department seeking advice in how to respond. The police dispatched an officer to the employer’s workplace. The officer spoke with the EMT in the presence of the Operations Manager (who did not say anything). The company terminated the EMT.

Seasoned labor practitioners will know this case turns on an employee’s Weingarten rights. Weingarten rights say that an employee represented by a union has the right to request that a union representative be present during an investigatory interview which the employee reasonably believes could result in disciplinary action. The burden is on the employee to make this request.

The EMT did not request union representation during this interview. Nonetheless, the EMT was not entitled to union representation because the interview was not an “investigative interview” for which the Weingarten rights apply. Rather, the interview was a police interrogation. Not every meeting with employees constitutes an investigative interview under Weingarten, and even if an investigative interview does take place, the employee must actually request union representation to invoke his Weingarten rights.

Matt Austin who owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.

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