Arbitrator Sharon Gallagher has upheld discipline for an employee who refused to participate in a meeting with her supervisor without the presence of a union representative where the arbitrator concluded that the employee had no reasonable basis to fear discipline could result from the meeting.
Grievant was employed as a social worker by Wabasha County, MN. She had a somewhat difficult history with her supervisors but the primary incident in dispute arose from an email request from grievant's supervisor requesting that she meet with him. After an exchange of messages about the subject of the meeting grievant responded:
Because of how the last conversation with you about this topic ended I will bring a union representative as a witness in this meeting.
Thereafter, grievant exchanged email messages with the County's HR Director, repeating her belief that the meeting could result in discipline and her request for union representation at the meeting. At the HR Director's request, grievant called her. Grievant summarized that conversation is a later memo:
I placed a phone call to Krissa Bedsted (sic) from the office of Tammy Loretz. I stated that I had Tammy Loretz as my union representative and I was invoking my Weingarten Rights as I believed the conversation could lead to disciplinary action. Krissa stated that it was not appropriate to have a union representative and I was not able to invoke my Weingarten Rights. ... Krissa stated that I would not be written up, that she could guarantee the conversation would not lead to disciplinary action. ...
Grievant indicated that "under duress" she agreed to meet with her supervisor without a union representative.
A meeting was scheduled but grievant again declined to meet without her union representative.
Several days later grievant's supervisor again emailed her, scheduling a new meeting and advising grievant that "this is not a disciplinary meeting, therefore having a union representative is not warranted." Grievant appeared at the scheduled meeting with a union representative and refused to proceed without her presence. As a result of this (and some previous issues) the County issued a letter of reprimand to grievant.
When the dispute was submitted to arbitration, Arbitrator Gallagher rejected the County's reliance on the earlier issues but upheld discipline for the refusal to participate in the schedule meeting as directed. Arbitrator Gallagher reduced the letter of reprimand to a verbal warning.
After a review of relevant case law, Arbitrator Gallagher noted that under Weingarten an employee's belief that discipline may result from a meeting must be "objectively reasonable." Concluding that this was not the case here, the Arbitrator observed:
It is of prime importance that [grievant's] subsequent request for union representation came after ... she had received Bedsted's verbal assurance and Simonett's written assurance that no discipline would result from a meeting with Simonett. The question arises whether[grievant] could reasonably believe that the April 23rd meeting with Simonett might result in her being disciplined despite Simonett's e-mail assurance and HR Director Bedsted's verbal assurance that the meeting would not result in discipline. In my view, [grievant's] belief that she would be disciplined as a result of the April 23rd meeting with Simonett was unreasonable based on the facts of the record here.
Finding that grievant's refusal to participate in the meeting constituted unprotected insubordination the Arbitrator concluded:
As is clear form the cases listed and described above, an employer may discipline an employee for insubordination if the employee unreasonably and repeatedly insists on union representation in a non-disciplinary meeting. Note that the magic words, "I refuse to meet with my supervisor," are not required for arbitrators and the Board to find discipline for insubordination is warranted. [Grievant's] showing up with Steward Loretz on April 23rd and handing Simonett the Weingarten card when she had been told verbally and in writing that no discipline would come out of the meeting and nonunion representative was called for, constituted clear insubordination. [Grievant] had been ordered to attend without representation by both Bedsted and Simonett and she chose to defy those orders.
Arbitrator Gallagher's award can be found here.
Update: In Verizon California, Inc. the NLRB refused to defer to an arbitrator's award that had found that an employee was not entitled to the assistance of a union representative because the employee did not reasonably fear discipline. The Board found the arbitrator's conclusion "palpably wrong." The question of deferral to an arbitrator's award is also discussed here.
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