A disciplinary meeting over inaccurate time card entries that turned into an investigation over other work conduct meant that management should have allowed the employee to have his union representative present after he asked whether he needed “to get somebody in here,” the National Labor Relations Board rules 2-1, affirming an administrative law judge determination that the employer had violated the employee’s right to have representation during an investigation that could be used against the employee.

The Board says that based on a review of the audio recording and the transcript of the meeting, the employee could reasonably have feared that his responses to management’s questions. After delivering a written verbal warning about the time card entries, the employee’s manager “indicated there was one other thing that he wanted to discuss,” where upon the employee asked twice if he needed “to get somebody else in here.” The first management response was “no,” and after the second request, management proceeded to inquire why the employee kept “insinuating” that he was being assigned jobs that are outside his job responsibilities; and that he was showing “the kinds of traits that had got [him] into trouble in the past;” and “A lot of these traits that have gotten you in trouble in the past are creeping up again, alright.”

In NLRB v. J. Weingarten, 420 U.S. 251 (1975), the Supreme Court held that an employer violates the National Labor Relations Act when it denies an employee’s request that a union representative be present at an interview which the employee reasonably believes may result in discipline. In this case, after giving the employee a warning for violating the time card policy, when management started questioning the employee about another matter, and the employee asked whether he “needed to get somebody else in here” was sufficient to be construed as a request for union representation, according to the ALJ and the Board majority. General Die Casters and Teamsters Local 24