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www.uwua.net We gave our time to help make things better for all our union sisters and brothers  Weingarten Rights
EMPLOYEE'S RIGHT TO UNION REPRESENTATION
1. When is Protection Afforded?
Protection under Weingarten is afforded when an employee reasonably believes that disciplinary action may be the result of his/her meeting with the employer's representative in an investigatory interview and where the employee requests representation.
a. What is a "reasonable" belief is measured by objective standards, not the subjective motivations of the employee, based upon a reasonable evaluation of all the surrounding circumstances.
b. An employee can participate in an interview without a representative if he/she foregoes his/her right to request one.
c. Ordinarily, once a valid request for union representation is made, the burden is on the employer to either grant the request or offer the employee the choice between continuing the interview unaccompanied by a union representative or having no interview at all.
d. An employer has no obligation to continue with an investigative interview once union representation is requested. It does not have to justify its refusal and can continue its investigation without questioning the employee and the employee then foregoes any benefits that may be derived from participating in an interview.
2. What Role Does the Union Representative Play?
a. The representative's role is to assist the employee and the representative may do so "by attempting to clarify the facts or suggest other employees who may have knowledge of them." Weingarten, 420 U.S. 251 (1975).
b. A representative oversteps his/her bounds in instructing an employee not to answer a question or questions during an interview. An employer may "eject" a representative who engages in such behavior because "it is within an employer's legitimate prerogative to investigate employee misconduct in its own facilities without interference from union officials." Weingarten, 420 U.S. 251 (1975).
Know your labor law Weingarten rights -
Use them or lose them!
By Att. Gay Semel
Most union activists know that employees have the right to union representation during an investigatory interview, but .
. .
Question: Where does the right come from?
Answer: In the landmark Weingarten case, the United States Supreme Court ruled that a union-represented employee has the right to representation during an interview with management if he or she reasonably believes that disciplinary action will result. Although the right to union representation usually arises during an "investigatory interview," such an official setting is not required. Any conversation with management during which the employee is questioned and reasonably believes the questioning could lead to discipline triggers the right to union representation. (Note: Weingarten rights apply to private sector employees only. Unionized public sector employees usually enjoy similar rights but those are established by state law or collective bargaining).
Question: What is a reasonable belief?
Answer: A "reasonable belief" is based on an objective standard. When all the circumstances are evaluated, is it reasonable to believe that continued discussion could lead to disciplinary action? If so, the Weingarten right arises.
Question: What must an employee do?
Answer: The employee must request union representation. The employer has no obligation to make sure a union steward is present during an investigatory interview, or even to advise the employee of their right to union representation. Therefore, it is very important that the union educate bargaining unit members about their right to representation and when to ask for it.
Question: What happens after the employee asks for representation?
Answer: If an employee being questioned by a supervisor, a manager, a company security agent, or other company representative asks to have a steward present, the request must be granted or the interview stopped.
Question: What if the supervisor or other company representative continues the interview?
Answer: If a supervisor ignores a request for a steward and continues the interview, the employee should refuse to respond. The employee must be careful, however, not to do anything else that could be considered insubordinate. For example, the employee should not walk out of the interview. Rather, the employee should remain at the interview but advise the company representative that they are requesting a steward and will not answer questions without union representation.
Question: Does the employer have to provide the steward requested by the employee?
Answer: No, If the employee's regular steward is not available, the employer need only provide a steward in order to lawfully continue the interview. However, the employer can not select a steward more to the employer's liking if the employee's regular steward is available.
Question: Must the employer allow time for the employee to consult with the union steward prior to continuing the interview?
Answer: Yes. When the union representative arrives at the interview, the employee has the right to consult with the steward privately before continuing the interview.
Question: During the interview, what can a steward do?
Answer: The investigatory interview is not a bargaining session or a grievance meeting and the employer is not obligated to bargain with the union representative. On the other hand, the employer cannot order the steward to remain silent. The steward is entitled to provide assistance and counsel during the interview. At the beginning of the interview, or when the steward arrives, the steward must be told the nature of the alleged misconduct. During the interview, the steward may request that a question be clarified. The steward may give advice to the employee on how to answer a question. The steward and the employee may confer privately regarding the question and answer. When the questioning ends, the steward may provide additional useful information. The steward may not tell the employee not to answer a question or to give a false answer. The steward may and should take notes throughout the interview.
Question: What should the union do if an employee is denied Weingarten rights?
Answer: If an employee advises the union that they requested union representation and it was denied, an unfair labor practice charge should be filed with the National Labor Relations Board. Ultimately, if the Union wins at the Board, the employer will have to post a notice and, hopefully, will learn that Weingarten rights must be granted.
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