Witnesses allowed during some discipline procedures

Standard, nonunion, small-business discipline and termination procedures consist of an investigation and a meeting that includes the manager and a company witness. The employee may feel alone and unsupported, but a recent ruling al-lows employees to call witnesses under certain conditions.

From the perspective of a small enterprise, an associate will require occasional informal or formal counseling. Infor-mal counseling addresses the day-to-day behaviors that warrant correction, such as making a personal telephone call. The communication from a supervisor occurs immediately and should be perceived by the subordinate as nonthreatening.

Formal counseling is a more serious level of discipline. At first, a small-business executive will conduct a fact-finding investigation to determine if formal discipline is warranted. The probe typically includes interviewing the employee and any other relevant staff.

If the counseling is justified, the laborer is brought into the private office of the manager. The manager will have a company witness present for two primary reasons: to help guide the session if the counselor needs assistance; and to provide testimony corroborating the testimony of the supervisor during any trials that might arise as a result of the discipline or termination.

Traditionally, nonunion employers do not have to be in compliance with the National Labor Relation Act. The NLRA creates and protects the right of associates to engage in union activity, and applies to businesses with one or more team members. In a recent ruling, the National Labor Relations Board decreed that the Weingarten rights apply to non-union and union employers. The Wein-garten right is the right of a worker to have a coworker present during investigatory interviews conducted by management, if the employee reasonably believes discipline will follow. If an as-sociate even remotely hints that he pre-fers to participate in the meeting with a colleague, he activates the Weingarten right.

The laborer is allowed to choose the fellow worker and is responsible for en-suring his presence during the meeting. Team members may not invite friends, relatives or attorneys. The peer must be permitted to talk. The business is not re-quired to give any consideration to the comments of the coworker in reaching the disciplinary determination.

The NLRB's decision applies to non-retail enterprises with gross inflow or outflow of at least $50,000 in annual revenue, and retail establishments with $500,000 and substantial direct or indirect interstate dealings.

The Weingarten right does not apply if the enterprise intends to only communicate the formal counseling. The establishment is not required to inform a subordinate of this right; he must request the right. The right only applies to laborers covered by the NLRA. Accordingly, su-pervisors, managers and independent contractors will be excluded from coverage and could not claim a Weingarten right.

Once a legitimate request is made, the company has four options: to allow the petition and proceed with the interview; to cease the discussion and render discipline; to discontinue the meeting and conduct an investigation without an interview; or to extend the worker the option of proceeding unaccompanied by the colleague or having no interview at all, which relinquishes any gain the meeting might have provided him.

(Lynne Haggerman is president/ owner of Haggerman & Associates, a retained search, outplacement, in-house management training, and hu-man resources consulting firm.)