Employee Simmons claimed his supervisor Rodzach opened a meeting by asking whether he had been rude. Invoking his Weingarten rights, Simmons said he would not discuss the matter without his shop steward being present. Rodzach did not respond to the request, so Simmons ended the meeting and left the room. Unfortunately for Simmons, Weingarten was not applicable since Rodzach went into the meeting with a counseling notice already prepared and did not attempt to question Simmons.
In Weingarten, Inc., the U.S. Supreme Court held that the National Labor Relations Act guarantees an employee’s right to have a union representative present during an “investigatory interview in which the risk of discipline reasonably inheres.” Weingarten does not apply if an employer is only informing an employee of disciplinary action. The right to have union representation can be triggered if the employer begins questioning the employee during the meeting, but Rodzach never attempted to question Simmons and never denied Simmons union representation. Therefore, Simmons never made an NLRA-protected request for union representation during an investigatory interview, and the company was justified in giving him a five-day suspension for walking out of the meeting.