Weingarten
Rights:
One
of the Most Vital Functions of a Union Steward is to prevent management from
intimidating employees. Nowhere is this more important than in closed-door
meetings when supervisors or agents, sometimes trained in interrogation
techniques, attempt to coerce employees into confessing to wrongdoing.
The rights of employees
to the presence of a union representative during investigatory interviews was
announced by the U.S. Supreme Court in 1975 in NLRB v. J. Weingarten, Inc. Since
that case involved a clerk being investigated by the Weingarten Company, these
rights have become known as Weingarten Rights.
Unions
should encourage workers to assert their Weingarten Rights. The presence
of a steward can help in many ways. For example:
Note:
Charges alleging a violation of Weingarten Rights are generally not
deferred by the NLRB. Nor are violations considered "de minimus" even
if no employee is disciplined.
What
Is an Investigatory Interview?
Employees
have Weingarten rights during investigatory interviews. An investigatory
interview occurs when a supervisor questions an employee to obtain information
that could be used as a basis for discipline or asks an employee to defend his
or her conduct. If an employee has a reasonable belief that discipline or
other adverse consequences may result from what he or she says, the employee has
a right to request union representation. Investigatory interviews usually relate
to subjects such as:
absenteeism
accidents
damage
to company property
drinking
drugs
falsification
of records
fighting
insubordination
lateness
poor
attitude
sabotage
theft
violation
of safety rules
work
performance
Work
location conversations. Not every management Initiated discussion is
an investigatory interview. For example, a supervisor may talk to a worker about
the proper way to do a job. Even if the boss asks questions, this is not an
investigatory interview because the possibility of discipline is remote. The
same is true of routine conversations to clarify work assignments or explain
safety rules.
Nevertheless, even an
ordinary shop-floor discussion can change its character if the supervisor is
dissatisfied with the employee's answers. If this happens, the employee can
insist on the presence of a union representative before the conversation goes
any further.
Disciplinary
announcements. When a supervisor calls a worker to the office to
announce a warning or other discipline, is this an investigatory interview
affording the worker a right to union representation? The NLRB says no, because
the employer is merely answering a previously arrived-at decision and is not
questioning the worker.
Such
a meeting, however, can be transformed into an investigatory interview if the
supervisor begins to ask questions to support the decision. Note: An employer
that has followed a past practice of allowing stewards to be present when
supervisors announce discipline, must maintain the practice during the contract
term. Refusing to allow a steward to attend would constitute an unlawful
unilateral change.
Weingarten
Rules
Under
the Supreme Court's Weingarten decision, when an investigatory interview occurs,
the following rules apply:
Rule
1. The employee must
make a clear request for union representation before or during the interview.
The employee cannot be punished for making this request.
Rule
2. After the employee
makes the request, the employer must choose from among three options. The
employer must either:
a.
Grant the request and delay questioning until the union representative arrives
and has a chance to communicate privately with the employee; or
b.
Deny the request and end the interview immediately; or
c. Give
the employee a choice of: (1) having the interview without representation or (2)
ending the interview.
Rule
3. If the employer
denies the request for union representation, and continues to ask questions, it commits
an unfair labor practice and the employee has the right to refuse to
answer. The employer may not discipline the employee for such a refusal.
Employers
often assert that the only role of a steward at an investigatory interview is to
observe the discussion; in other words, to be a silent witness. The Supreme
Court, however, clearly acknowledged a steward's right to assist and counsel
workers during the interview. Decided
cases establish the following procedures:
1.
When the steward arrives, the supervisor must inform the steward of the subject
matter of the interview, i.e., the type of misconduct for which discipline is
being considered (theft, lateness, drugs etc.).
2.
The steward must be allowed to take the worker aside for a private pre-interview
conference before questioning begins.
3.
The steward must be allowed to speak during the interview. However, the steward
does not have the right to bargain over the purpose of the interview.
4.
The steward can request that the supervisor clarify a question so that the
worker can understand what is being asked.
5.
After a question is asked, the steward can give advice on how to answer.
6.
When the questioning ends, the steward can provide additional information to the
supervisor. It must be emphasized that if the Weingarten rules are complied
with, stewards have no right to tell workers not to answer questions, or to give
false answers.
Workers can be
disciplined if they refuse to answer questions.
You
may be familiar with the "Miranda warnings" given by police. The
Miranda warnings notify criminal suspects of their rights, including the right
to a lawyer and to remain silent. Unfortunately, the Supreme Court did not
impose a notice requirement in its Weingarten decision. Employers have no
obligation to inform workers of their right to request union representation.
This is the union's job.
Unions should explain
Weingarten rights at meetings and in newsletters. A good way to get the word out
is to distribute wallet-sized cards saying the following:
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 union
representative, officer, or steward be present at the meeting.
Without
representation, I choose not to answer any questions.
On
the other side of the card, is information about the union, such as the office
address and telephone number. Tell members to present the card whenever they
have a reasonable belief of that what they say may affect their position.
QUESTIONS
AND ANSWERS
1.
Demanding to attend meeting
Q.
If I see a worker being interviewed in a supervisor s office, can I demand to
attend the meeting?
A. Yes. A steward has a
protected right to demand admission to a Weingarten interview. However, once the
request is made, the employee being interviewed must indicate a desire for your
presence. If the employee states that he or she wishes to be interviewed
alone, the steward must leave.
2.
Coercing employee to drop request
Q.
An employee was summoned to an interview with his supervisor and asked for his
steward. In response, the
supervisor said. "You can request your steward, but if you do, I will have
to bring in the manager, and you know how temperamental he is. If we can keep it at the level we're at, things will be a lot
better for you.” Is This A
Violation?
A.
Yes. The supervisor is threatening greater discipline to coerce the employee
into abandoning his/her Weingarten rights. This is an unfair labor practice.
3.
Employee refuses to go to meeting
Q.
An employee was ordered by his/her supervisor to the Labor Relations office for
a "talk" about his/her attitude. He/she asked to bring a union
representative but the supervisor said he/she would have to make her request
when he/she got to the office. Can he/she refuse to go to the office?
A.
No. Weingarten rights do not begin until the actual interview begins. The
employee must go to the office and repeat his/her request to the official
conducting the interview. Only if a supervisor makes clear in advance to the
employee that he or she intends to conduct an investigatory interview without
union representation, does an employee have a right to refuse to go to a
meeting.
4.
MedIcal examination
Q.
The company is recalling workers from a layoff and is insisting on medical
examinations for those out of work three months or more. Can the workers demand
a steward's presence during the examination?
A.
No. Medical examinations are not investigatory interviews. Weingarten rights do
not apply.
5.
Lie detector test
Q.
Does Weingarten apply to a polygraph examination?
A. Yes. An employee has
a right to union representation during the pre-examination interview and the
examination itself.
6.
Urinalysis
Q.
If management asks a worker to submit to a urine test for drugs, does Weingarten
apply?
A.
Yes and no. Since a urine test is not questioning, an employee does not have a
right to the presence of a steward during the actual test. Management must,
however, allow the employee to consult with a union representative to decide
whether or not to take the test.
7.
Locker search
Q.
Can management order a worker to open a locker without a steward being present?
A.
Yes. Locker searches, car searches, or handbag searches are not interviews.
Employees do not have a right to insist on the presence of a steward.
8.
Request to initial an interim
Q.
If a worker is given a warning for misconduct and is asked to initial an interim
to acknowledge the interim being read by the employee, must the employer permit
her to consult her steward before signing?
A.
No. Since the employer is not questioning the worker, Weingarten rights do not
apply. But, the employee should
request a copy and forward it to the union office.
9.
Steward not at work location
Q.
If a worker's steward is out sick, can the worker insist that the interview be
delayed until the steward is available?
A.
No. Management does not have to delay an investigation if other union
representatives are available to assist the employee at the interview.
10.
Steward's right to representation
Q.
If a Steward is called in by his/her supervisor to discuss his/her work record
does he/she have the right to a union representative?
A.
Yes. Union stewards have Weingarten rights, too. If you have a reasonable belief
of discipline or other adverse action, you have the right to the presence of a
union representative.
11.
Walking out of an investigatory interview
Q.
Suppose a worker's request for a steward is denied. If the supervisor continues
to ask questions, can the worker walk out of the office to get a steward?
A.
In some cases, yes. According to NLRB decisions, when an employee is entitled to
union representation and the employer denies the employee's request, an employee
can refuse to participate in the interview, even to the point of walking out to
seek a union representative. However, if the employee is told to wait while
management gets the steward, the employee must stay in the office until the
steward arrives.
12.
Work location meeting
Q.
If the company calls a meeting to lecture workers about job performance, do the
employees have a right to demand the presence of a union representative before
attending the meeting?
A.
No. Holding a meeting on work time that does not involve interrogation is not a
Weingarten meeting. There is no right to a steward unless the employer begins
asking questions of employees in a manner that creates a reasonable belief of
discipline ensuing.
13.
Penalties for Weingarten violations
Q. If management
refuses an employee's request for union representation, gets the employee to
confess to theft, and then fires the employee, will the NLRB order the worker to
be reinstated?
A.
Probably not. The NLRB used to order the reinstatement of employees who were
fired as a result of admissions during an illegal interview. But in 1984 the
Board ruled that such a penalty was an unwarranted "windfall" for
guilty workers. The standard Weingarten penalty is now limited to a bulletin
board posting in which the employer promises not to repeat its violations.
Remember:
There is no need to assert your authority.
It is your legal right to represent our members.