Legal Mailbag – 1-6-22

By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Mailbag Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors.

Please submit your questions to: legalmailbagatcasciacdotorg.

Dear Legal Mailbag:

Last month, I put one of the teachers I supervise on a performance improvement plan, and under that plan I am supposed to review his progress once each week. However, the teacher has said he will not talk to me without his union representative. Moreover, when we meet to review his progress on the goals of his performance plan, the union representative keeps interrupting and answering for him. Can she do that?

Put A Sock In It


Dear Sock:

The simple answer is no. But before we get to what union representatives can and cannot do at such meetings, Legal Mailbag will review the rules regarding union representation more generally. The rights of unionized teachers and non-certified employees working for school districts are provided by the Teacher Negotiation Act (TNA) and the Municipal Employees Relations Act (MERA), respectively. Both laws are modeled on the National Labor Relations Act, and our Connecticut State Board of Labor Relations often adopts rulings of the National Labor Relations Board (NLRB) in interpreting employee rights under the TNA and MERA.

The NLRB describes the statutory basis for employee collective bargaining rights as follows:

Section 7 of the National Labor Relations Act (the Act) guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.”

Section 8(a)(1) of the Act makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7” of the Act.

Based upon these provisions, in J. Weingarten, Inc. and Retail Clerks Union, Local Union No. 455, Retail Clerks International Association, AFL-CIO, 202 N.L.R.B. 446 (N.L.R.B 1973), the NLRB decided that it is an unfair labor practice for an employer to refuse to permit an employee to have union representation during an investigatory interview at which the employee reasonably fears for his or her job security. In 1975, the United States Supreme Court ruled in favor of the NLRB in this case, NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), and the now well-known Weingarten right to union representation was born.

The Connecticut State Board of Labor Relations has adopted the Weingarten rule, holding in 1983 that teachers have a right of union representation at meetings to review their performance. East Hartford Board of Education, Dec. No. 2256 (St. Bd. Lab. Rel. 1983). This rule clearly applies in your case because you have placed the teacher on a plan based on performance concerns that could result in a recommendation that the teacher’s contract be terminated. Accordingly, you must permit the teacher to have union representation at your meetings to review his progress.

More generally, Weingarten rights arise only when an employee asks for union representation, and employers do not have an affirmative duty to notify employees of their right to union representation in a pre-disciplinary meeting. However, school officials often remind employees of their right to union representative in such situations as a courtesy, which also serves to underscore the fact that job security is in issue. In any event, employees can assert their Weingarten rights at any time, and even when an employee asks for union representation in the middle of a meeting, the employer must stop the questioning until the employee has representation. Employers must be careful in such situations not to ask the employee to just finish the meeting. If an employer violates employee Weingarten rights by denying union representation after an employee requests it, the employer is not permitted to use information gathered at the meeting, and the employer may be held accountable for committing an unfair labor practice.

That said, there are significant limits on the role of the union representative at an investigatory interview (which per the East Hartford Board of Education case includes review of performance under a plan). First, the interaction must be investigatory, i.e., you must be asking for information from the employee. Weingarten rights are not triggered when an employer communicates with an employee in the normal course. Therefore, the teacher’s statement that he will not speak with you without a union representative is overly broad, and you do not have to permit union representation every time you want to tell this teacher something.

Second, the role of the union representative at such a meeting is to clarify questions (so that the employee does not answer based on a misunderstanding of the question) and to caucus with the employee at any time during the meeting. Here, you are asking questions of the teacher, not the union representative, and answers to your questions may involve his professional judgment. Therefore, you can (and should) insist that the teacher answer your questions. If the union representative starts to respond when you ask the teacher questions, you have every right to stop the union representative, confirm that the question is clear, and insist that the teacher answer your questions. You should be all set now.