Angry Response To Representation Request Violates Weingarten

Written on 09/11/2021
Will Aitchison

Waukesha County, Wisconsin is party to a collective bargaining agreement with the Waukesha Deputy Sheriffs Labor Union. On December 5, 2019, Steven Miksch, who is a member of the Union, was directed to meet with Nick Ollinger and Chad Niles, both of whom were supervisors.

Niles and Ollinger each reviewed a work report with Miksch and provided him with feedback. Ollinger then started a conversation with Miksch as to why his boss was asking Ollinger about an employee Ollinger supervised (i.e., Miksch) not doing his job. Ollinger then began to question Miksch about the steps he had taken to obtain evidence requested by the County District Attorney.

Miksch asked for a Union represen­tative to be present. Ollinger angrily told Miksch that he did not need a representative and that he would not be receiving disci­pline. Niles then attempted to lower the temperature of the conversation. Miksch again asked for a Union representative. Niles offered his opinion that a Union representative could not do anything but be present and cannot talk or interject in the conversation. The discussion wound down and Miksch was not disciplined.

The Union filed an unfair labor prac­tice complaint with Wisconsin’s Employ­ment Relations Commission, contending that the conduct of Ollinger and Niles violated the right to representation under the Weingarten rule. A hearing officer for the Commission agreed with the Union.

The Examiner concluded that “the Commission has held that a municipal employer interferes with a municipal employee’s rights under the law when it compels a municipal employee to appear at an investigatory meeting, which the employee reasonably believes could result in discipline, without union representation where the employee has expressly requested such representation at the meeting.

“The County correctly argues that the right to request union representation is not triggered by the many day-to-day interactions between supervisors and employees – such as the report reviews Ollinger and Niles conducted with Miksch. However, Miksch provided unrebutted credible testimony that the subsequent conversation with Ollinger about evidence began with Ollinger asking Miksch why Ollinger’s boss was asking him why one of Ollinger’s employees (i.e., Miksch) was not getting the job done. With that type of opening comment followed by a series of questions, Miksch clearly had an objectively reasonable belief that the conversation could lead to discipline. Thus, he had a statutory right to request Union representation and he did so.

“Ollinger reacted angrily to Miksch’s request for Union representation. That angry response clearly had the reasonable potential to make it less likely that Miksch would maintain his request for representa­tion or make such a request in the future. As such, he violated the law’s prohibition against conduct that has a reasonable ten­dency to interfere with, restrain or coerce an employee from exercising his statutory right to request Union representation.

“When responding to Miksch’s request for Union representation, Niles in­accurately minimized the role that a Union representative could play in the discussion. The law allows a Union representative to play a more active role than Niles advised Miksch – such as asking clarifying ques­tions or consulting with the employee. By minimizing the representative’s role, Niles made it less likely that Miksch would maintain his request for representation or make such a request in the future. As such, he violated the law’s prohibition against conduct that has a reasonable tendency to interfere with, restrain or coerce an em­ployee from exercising his right to request Union representation.”

Waukesha Deputy Sheriffs Labor Union, 2021 WL 2412903 (WI. Emp. Rel. Com. 2021).

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