Role of a Union Representative at an Investigatory Interview

Diana Moffat

From our May 2017 e-newsletter

This question often arises:

“We have scheduled an investigatory interview with an employee based on alleged violations of policy. The employee has now told us that his labor representative and/or labor lawyer is going to be in attendance. What do we do? What is the allowable role of the representative or the lawyer at this interview?”

The Oregon Employment Representation Board (ERB) answered that question for you. If you follow the four parameters, there is no reason to dread the presence of a union representative at an investigatory interview.

Washington County Police Officers Association v. Washington County, 12 PECBR 693 (1991)

After weighing the rights of employers to investigate employee conduct and to maintain control of the workplace, the representation rights of employees, and the policy reasons for having pre-grievance union representation, this Board holds that the role of a union representative during interviews comprises the following:

1. The representative may inquire, at the outset of the interview, regarding its purpose, including inquiring about the general subject matter of the questioning to follow.

2. During the questioning of the employee by the employer, the representative may participate only to the extent of seeking clarification of questions.

3. After the employer has completed the questioning of the employee, the representative may ask the employee questions designed to clarify previous answers or to elicit further relevant information.

4. Before the end of the meeting, the representative may suggest to the employer other witnesses to interview and may describe relevant practices, prior situations, or mitigating factors that could have some bearing on the employer’s deliberations concerning discipline.

We believe the above role of the representative is sufficient to provide an employee with the pre-grievance representation rights derived from ORS 243.662 and to achieve the basic purpose of such rights as described by the court in Weingarten, as follows:

“A single employee confronted by an employer investigating whether certain conduct deserves discipline may be too fearful or inarticulate to relate accurately the incident being investigated or too ignorant to raise extenuating factors. A knowledgeable union representative could assist the employer by eliciting favorable facts, and save the employer production time by getting to the bottom of the incident occasioning the interview. Certainly, his presence need not transform the interview into an adversary contest.”

The union representative does not get to speak for the employee[1]. I find it handy to have a fact sheet that describes the union representative’s role during the interviews to hand out at the start of the interview. I would be happy to provide you with a copy.

[1]Please note that it is different at the pre-disciplinary meeting (aka Loudermill hearing). At that point, the employee’s participation is voluntary, so the union representative can do all of the talking.