EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES – Union or Employee Misconduct

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The protections afforded by EERA should extend to circumstances in which a representative could have prevented an employee from losing his or her temper, becoming insubordinate, lying, or engaging in other misconduct in the course of the employer’s investigation, and thereby giving the employer additional or alternative grounds for discipline. The right to representation protects employees from not only their admissions as a result of an unlawful interview but from their conduct, including misconduct, occurring as a result of an unlawful interview. Employer who refuses employee’s request for representation with assurance that no discipline will ensue may not then impose discipline as a result of the interview. Protected conduct does not cease to be protected simply because the employer regards the employee as insubordinate. Where employee effectively communicated her desire for representation to supervisor, in the absence of evidence that she had reconsidered or waived her right to representation, her subsequent refusal to respond to supervisor’s questioning was protected and not a proper basis for discipline.