How should we handle union reps during employee misconduct interviews? — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily
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How should we handle union reps during employee misconduct interviews?

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Q. We recently signed a collective-bargaining agreement with a union. While the labor contract addresses union representation during grievances and arbitrations, it doesn’t offer our managers and security investigators any guidance on whether and how the union can represent a covered employee during any interviews or investigations of possible employee misconduct. What is our duty under these circumstances?

A. Because it may be likely that some discipline may result from the employee misconduct interviews, it is reasonable to assume an employee might ask to have a union representative present during the interview.

Your managers and security investigators should follow this guidance:

1. If the covered employee asks to have a union representative present for the interview, you must grant the request. There’s no requirement to ask the employee if she wants a union representative present. However, it’s a good, cautionary business practice to do so—it can help avoid later claims that a request for a union representative was unfairly denied.

The employee doesn’t have to have a union representative present if she doesn’t want one.

The manager or investigator should document whether the employee requested a union representative. 

2. A union representative for a covered employee interview must be allowed to provide active counsel and assistance to the employee being interviewed. There is no specific definition of what that means, but the overriding standard is one of reasonableness.

The union representative must be allowed to speak and ask questions during the interview. The rep must also be allowed to have a private conference with the employee if one is requested.

Nevertheless, you have a right to have the employee, as opposed to the union representative, answer the factual questions. The union representative may not unreasonably interfere with or disrupt the interview.

3. The employee (and the union representative for that matter) should be given every opportunity to give the employee’s version of events.
There should be no question that the employee had a full opportunity to tell the employee’s side of the story.

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