Union Cries Foul When Employer Refuses to Allow Representation at Loudermill Hearing, Employer Stands Ground and Wins

For employers working with unionized employees, the Weingarten principles have become as much a part of labor relations as contract negotiations, and probably play a larger role in everyday employee management.  The principle is simple: employees are entitled to representation during an investigatory interview when an employee has a reasonable belief that discipline or discharge may result from what he or she says during the interview.  However, as years have passed, unions have pushed to have more of a presence in employer procedures, attempting to be present when employees act as witnesses or receive performance evaluations. 

In the case of Minnesota Teamsters Public and Law Enforcement Employees’ Union, Local 320 v. County of Hennepin, when an employee was informed of the employer’s intent to terminate (see decision below).  As part of the notice, the employee was informed of the employee’s right to an administrative Loudermill hearing prior to formal discharge.  The employee requested representation for the hearing, but the request was denied by the County. 

One day after the Loudermill hearing, the union filed a lawsuit over the denial, claiming the County committed an unfair labor practice.  The County moved to dismiss the complaint on three separate grounds: first, the union failed to file its ULP claims with the Bureau of Mediation Services, as required by the statute; second, the union did not state any viable claims for relief; and third, the court lacked the subject-matter jurisdiction over the union’s breach-of-contract claim. 

On the first part of the motion, the court found that the union did not timely file its complaint with BMS when it waited four months to file its amended complaint with the BMS.  The court found that just because the union filed an amended complaint at that time, it did not relate back to the time of the original filing.  PELRA requires complaints to be filed with BMS “at the time” a ULP action is brought to court.   The court easily found that four months after the original date of filing was not done “at the time” of the original filing. 

In regard to the substantive claim, the court found that both the defendant and the plaintiff agreed the right to union representation at Loudermill hearing was not addressed by statute, and the union stated that the right to union representation at a Loudermill has never been addressed in Minnesota courts.  The court relied on the Court of Appeals decision in Deli v. Univ. of Minn., which lays out the requirements for a proper Loudermill hearing.  It stresses that limited procedural protections are required, and the case did not include the right to union representation in its list of requirements.  511 N.W.2d 46 (Minn. Ct. App. 1994). 

The Loudermill decision from the U.S. Supreme Court should be sufficient to have won the case: “All the process that is due is provided by a pre-termination opportunity to respond, coupled with post-termination administrative procedures”. 470 U.S. 532, 547-48 (1985).  Nowhere in that decision is mention made of having union representation present. 

In an interesting decision, the court took the opportunity to also examine the language of the collective bargaining agreement, which contained language regarding employees’ rights to union representation during investigatory meetings.  The reason this is interesting is because the language was clear and never mentioned Loudermill meetings, but also that later on in its decision, the court found that it lacked subject matter jurisdiction over the union’s breach of contract claim. 

For the reasons listed above, along with the court’s determination that the union failed to state a claim under the unfair labor practices currently included in PELRA, the case was dismissed. 

Union representation is something many employers have come to accept during Loudermill hearings.  However, the County and the court were correct in their positions that Loudermill hearings do not involve investigative questions that could lead to discipline by nature; they are the result of the investigative proceedings that have already taken place.  While many employers find the presence of a union representative helpful during Loudermill hearings, that is not always the case.  If you feel that a union representative’s presence could be disruptive or lead to unnecessary acrimony between the employee and the decisionmaker, it may be worth the effort to keep the representative out of the meeting. 

As always, decisions like this can be difficult, and need to be evaluated from all angles.  If you and or organization need assistance in any aspect of labor relations, contact the Wiley Law Office, for labor relations advice that works.