dissenting:
From the majority’s holding that denial of union representation at a pretermination hearing does not violate a public employee’s rights of expression and association, I respectfully dissent.
In Woodruff v. Board of Trustees of Cabell Huntington Hospital, 173 W.Va. 604, 319 S.E.2d 372, 379 (1984), this Court recognized that public employees possess certain fundamental rights, including rights of expression, assembly, association, and petition, under both the state and federal constitutions.
In the instant case, rights of expression, association, and petition were unquestionably implicated. The appellant, who had already been informed that he was being discharged for insubordination following a *139failed attempt to express his views regarding prison conditions to a contingent of legislators conducting an investigation of such conditions, specifically requested the presence of a union representative at his pretermination hearing. He was informed, prior to this hearing, that it was his burden to show cause why his employment should not be terminated. He was understandably apprehensive about confronting the warden alone. Moreover, his supervisor’s comment concerning his union affiliation raised the spectre of retaliation for such membership. This implicated not only the appellant’s individual interests, but also those of his union.
Failure to recognize a right to representation at disciplinary proceedings places public employee unions in a difficult position. The majority opinion directly conflicts with the affirmative obligation of public employee unions, often imposed by contract, to actively represent their membership. If unable to fulfill such obligation, especially when possible discipline, including termination, is involved, public employee unions lose much of their efficacy. Additionally, they will be perceived by their membership to have breached an important element of their contractual relationship. Only through advancement of the interests of its membership can a union realize its representation function.
The United States Supreme Court observed in N.L.R.B. v. Weingarten, Inc., 420 U.S. 251, 260-61, 95 S.Ct. 959, 965, 43 L.Ed.2d 171, 180 (1975), that:
The union representative whose participation he seeks is, however, safeguarding not only the particular employee’s interest, but also the interests of the entire bargaining unit by exercising vigilance to make certain that the employer does not initiate or continue a practice of imposing punishment unjustly. The representative’s presence is an assurance to other employees in the bargaining unit that they, too, can obtain his aid and protection if called upon to attend a like interview.
Moreover, after noting that a stated goal of the National Labor Relations Act is to protect “the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of ... mutual aid or protection,” the Court in Weingar-ten noted, “To that end the Act is designed to eliminate the ‘inequality of bargaining power between employees ... and employers.’ ... Requiring a lone employee to attend an investigatory interview which he reasonably believes may result in the imposition of discipline perpetuates the inequality the Act was designed to eliminate....” Id. at 262, 95 S.Ct. at 966, 43 L.Ed.2d at 180.
In my view, the associational rights protected under the federal and state constitutions are analogous to those protected under the National Labor Relations Act. In addition, rights of expression and petition are implicated in the public employment context. In City of Marion v. Weitenhagen, 361 N.W.2d 323, 328 (Iowa App.1984), the court commented that, “[Tjhere is nothing in the nature of a public employee’s work which would result in harm to the public if he or she is given such representation— ” I wholeheartedly agree. To the contrary, I believe that the public is best served by staunch protection of fundamental rights of expression, association, and petition. To the degree that the majority strays from this path, I respectfully dissent.
McHUGH, C.J., joins in this dissent.