By now you all know or should know when you have a right to representation and how important it is to utilize your right to representation under NRS 289 and your Weingarten rights.
Let’s assume the supervisors abused their authority and disregarded your request to have a representative present during their questioning immediately after a critical incident, even after you requested a representative by invoking your Weingarten rights. An investigatory interview is one in which a supervisor questions an employee to obtain information that could be used as a basis for discipline or asks an employee to defend his/her conduct. If an employee has a reasonable belief that discipline or discharge may result from what he/she says, the employee has the right to request union representation. It is your perception, not the employer’s.
Examples of such an interview are:
- The interview is part of the employer’s disciplinary procedure or is a component of the employer’s procedure for determining whether discipline will be imposed.
- The purpose of the interview is to investigate an employee’s performance where discipline, demotion or other adverse consequences to the employee’s job status or working conditions are a possible result.
- The purpose of the interview is to elicit facts from the employee to support disciplinary action that is probable or that is being considered, or to obtain admissions of misconduct or other evidence to support a disciplinary decision already made.
- The employee is required to explain his/her conduct, or defend it during the interview, or is compelled to answer questions or give evidence.
It is an obligation of the union to educate bargaining unit employees about their Weingarten rights before an occasion to use them arises. An employee must state to the employer that he/she wants a union representative present; the employer has no obligation to ask the employee if he/she wants a representative.
When an investigatory interview occurs, the following rules apply:
Rule 1: The employee must make a clear request for union representation before or during the interview. The employee can’t be punished for making this request.
Rule 2: After the employee makes the request, the supervisor has three options. He/she must either:
- Grant the request and delay the interview until the union representative arrives and has a chance to consult privately with the employee
- Deny the request and end the interview immediately
- Give the employee a choice of (1) having the interview without representation or (2) ending the interview
Rule 3: If the supervisor denies the request and continues to ask questions, this is an unfair labor practice and the employee has a right to refuse to answer. The employee cannot be disciplined for such refusal but is required to sit there until the supervisor terminates the interview. Leaving before this happens may constitute punishable insubordination. So be clear to ask the supervisor for representation, and be courteous while they speak, then ask them if they are done and simply ask to leave.
If the request is honored and the supervisor moves forward with the formal complaint, they must follow NRS 289.060, and then you will be able to have a representative with you.
Rights Under NRS 289.060
NRS 289.060: Notification and requirements for interview, interrogation or hearing relating to investigation; prohibition against use of certain statements or answers in subsequent criminal proceedings.
- Except as otherwise provided in this subsection, a law enforcement agency shall, not later than 48 hours before any interrogation or hearing is held relating to an investigation conducted pursuant to NRS 289.057, provide a written notice to the peace officer who is the subject of the investigation. (This is the same for a witness officer involved in the case.)
- The notice provided to the peace officer who is the subject of the investigation must include:
a) A description of the nature of the investigation;
b) A summary of alleged misconduct of the peace officer;
c) The date, time and place of the interrogation or hearing;
d) The name and rank of the officer in charge of the investigation and the officers who will conduct any interrogation or hearing;
e) The name of any other person who will be present at any interrogation or hearing; and
f) A statement setting forth the provisions of subsection 1 of NRS 289.080.
Please don’t ever hesitate to call and ask one of us for help or advice prior to any meeting that makes you feel like you are facing discipline.
Be safe, and thank you for your membership.