Employee's Right to Union Representation

The U.S. Supreme Court in 1975 rules that employees represented by a labor union under the jurisdiction of the National Labor Relations Act have a right to a union representative at interviews that may lead to discipline. Collectively, these rules are referred to as "Weingarten Rights".

 

The Weingarten Case

The actual lawsuit that led to the establishment of Weingarten rights involved an employee at a lunch counter. Laura Collins was accused of stealing and interviewed by the store manager and a loss prevention specialist. The company believed Collins had taken a large box of chicken but paid only for a small box--but had to put it in a large box because the store was out of small boxes. Her story checked out, and Collins was cleared.

From these humble facts, Weingarten rights were born. During the interview, Collins asked several times for her union rep or shop steward, but the company would not grant her request. Although management asked Collins to keep the interview to herself, Collins told her shop steward about it and the union filed an unfair labor practice charge against the company. Ultimately, SCOTUS decided that an employee is entitled to union representation for investigatory interviews.

 

When Weingarten Applies

An employee who reasonable believes that an investigatory interview could lead to discipline is entitled to ask for union representation. An investigatory interview is a meeting with management at which the employee will be questioned or asked to explain his or her conduct, and which could lead to disciplinary action against the employee.

The employer is not obligated to inform employees of their Weingarten rights or to ask whether an employee would like a union rep at a meeting or interview. The employee must affirmatively request union representation.

 

 

What Weingarten Rights Don't Do

They do not guarantee representation for non-investigatory meetings such as:

• Review of work rules
• imposing discipline
• giving instructions or training
• needed corrections to work
• giving information

 

 

Invoking Weingarten

"If this discussion could in any way lead to my being disciplined or terminated or affect my personal working conditions, I respectfully request that my association representative be present at the meeting. Without representation, I choose not to answer any questions."

 

 

Reps & Weingarten--TIPS

• Make sure your members understand the basics of Weingarten Rights and that they must assert them
• Don't judge-DEFEND!
• Maintain confidentiality at all times
• Communication with Association leadership
• Develop positive working relationships with your administrator

 

 

FOLLOW THESE STEPS

• Step 1: Notice
  • the member is entitled to know the purpose of the meeting. If it isn't known yet, find out from the administrator calling the meeting.
  • if job is at risk or there are criminal allegations, contact your president or staff member IMMEDIATELY.
  • The meeting should occur at a reasonable time and place.
• Step 2: Preparation
  • Gather information--specifically, the story and all relevant facts
  • Consult with Association resources: the contract, the President, or staff member
  • Again, make sure you fully understand the purpose of the meeting
  • Coach the member to stay focused and to only answer the questions being asked in the meeting.
• Step 3: During the Meeting
  • Enter, sit, and leave with the member
  • Bring your contract
  • If there is an accusation, ask for any statements and the identity of the accuser(s)
  • Be COOL!
  • Keep the member from providing information that is not requested
  • Ask clarifying questions
  • Caucus, if necessary
  • If presented any proposals, do not respond at the meeting
  • DO NOT let the employee sign anything or resign
  • Take notes
  • Perform the necessary follow up
• Step 4: After the Meeting
  • At the conclusion of an investigatory meeting, the following could happen:
    • Determination that there is nothing to warrant discipline
    • A request for more information, which could mean another meeting
    • Discipline (reprimand, suspension, termination). If this happens, contact your President immediately.

 

Weingarten Checklist

• Applicability & Notice
  • Applies to any managerial/supervisory investigatory interview that:
    • the employee would reasonable believe could ultimately lead to the discipline or discharge of the employee interviewed, and
    • if the employee requests representation for the interview by a representative of the union or coworker.
  • If the person requested by the employee is available within a reasonable period, that person generally should be the representative.
  • The employer need not give the employee notification of this right.
• Employer Actions Upon Employee Invoking of the Right
  • Employer may:
    • obtain a union representative or co-worker requested
    • Stop the attempt to interview and proceed with the investigation without the employee's contribution
    • offer the employee an uncoerced choice to:
      • continue the interview unaccompanied by a union representative or coworker.
      • Not be interviewed
• Union or Co-worker Representative Role
  • Union representative or co-worker is entitled to:
    • be briefed on the nature of the interview.
    • consult privately with the employee before the interview (and possibly during the interview after questions and before answers).
    • object to questions that are ambiguous or otherwise confusing and to employer conduct that might be labeled as outside the bounds of reasonable, such as harassment or abuse.
    • make suggestions with respect to the potential witnesses to the situation under investigation.
    • Provide explanations for the situation or facts that are exculpatory.
  • Union representative or co-worker has no right to:
    • obstruct the interview or make it adversarial.
    • conduct the interview.
    • end the interview.
    • act belligerently or profanely.
    • Turn the interview into a collective bargaining session.
  • The employer may ask the representative to stop the improper conduct, notify the representative that he/she/they may be subject to discipline or discharge for the improper conduct, remove, and replace the representative.