Legal Question of the Week – 4-29-16

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

The “Legal 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:

I know it may seem like a silly question, but do teachers ALWAYS have a right to a union representative at a meeting with an administrator? Recently, I invited my art teachers in for a meeting to discuss planning the upcoming art show. Following in right behind them walks a union representative, who happens to be the former teachers’ union president. She’s not an art teacher, and she wasn’t invited to the meeting. Are “Weingarten” rights applicable to all school meetings?

Seeking Clarification


Dear Seeking:

I must start this response by emphasizing that there are no silly questions when it comes to the complicated responsibilities of a school administrator. Moreover, I congratulate you on knowing that the right to have union representation is referred to as “Weingarten” rights.

Happily, the answer to your question is a simple no. Weingarten rights, i.e. the right of a union employee to have union representation in a meeting with a supervisor, attach only when the employee is being asked questions and has a reasonable concern for his or her job security. Union employees do not otherwise have the right to insist on having union representation when they interact with their supervisors.

The name you so cleverly remembered comes from NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), a decision of the United States Supreme Court handed down in 1975. There, an employer was interrogating an employee suspected of theft in the workplace, and the Court affirmed a decision of the National Labor Relations Board in that case that the union employee had the right to union representation when being questioned about matters over which the employee reasonably feared for his job security. The Court clarified that the employee must affirmatively ask for union representation, either before or during the investigatory interview, and once the employee makes that request, the employer must either terminate the interview or continue the interview only when the employee has such union representation present. Insistence on continuing the interview without permitting the employee to have union representation is an unfair labor practice, and any information gleaned from such illegal interview may not be used against the employee.

Given your intellectual curiosity, you will be interested to know that the Connecticut State Board of Labor Relations (SBLR) has adopted this ruling under both the Teacher Negotiations Act (for teachers and administrators) and the Municipal Employees Relations Act (MERA), which covers non-certified board of education and municipal employees. In fact, in 1983 the SBLR expanded this ruling in a case involving East Hartford, holding that the right to union representation also applies in an evaluation conference, again, however, only when the nature of the conference is such that the employee reasonably fears for his or her job security. East Hartford Board of Education, Dec. No. 2256 (St. Bd. Lab. Rel. 1983).
The State Labor Board elaborated on this ruling in 2011 as follows:

“The employee’s right to have union representation at a meeting with the employer does not arise in all situations, but is dependent upon the nature of interview or conference involved.” East Hartford Board of Education, Decision No. 2256 (1983).

A meeting “solely for the purpose of informing an employee of, and acting upon a previously made discipline decision” does not trigger the right to union representation. Baton Rouge Water Works Co., 246 NLRB No. 161 (1979); see also, City of Stamford, Decision No. 2476 (1986). We have, however, recognized that an employee may reasonably suspect possible discipline or threat to job security in meetings not formally designated as investigatory in nature. For example, such a reasonable belief may arise in discussions over employee evaluations. See, e.g., Trumbull Board of Education, supra, East Hartford Board of Education, supra.

State of Connecticut, Department of Children and Families, Dec. No. 4529 (St. Bd. Lab. Rel. 2011).

Given the foregoing (which is perhaps more than you wanted to know), it is clear that union employees have the right to have union representation upon request only when they fear for their job security. Given that the meeting with the teachers about the concert was to plan rather to interrogate, you had every right to go forward with the meeting without permitting a union representative to be present.